Opinion
6:22-cv-00382-MK
05-10-2023
ADALINE WINNINGHAM, individually and on behalf of all others similarly situated, Plaintiff, v. RAFEAL'S GOURMET DINER, LLC dba THE NILE, an Oregon Limited Liability Company; ABDRABARRASOOL M. BUESSA, an individual; and DOES 1 through 10, inclusive, Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
Plaintiffs Adaline Winningham and Hannah Thornton brought this putative class action against Defendants, Rafeal's Gourmet Diner, LLC dba The Nile, Abdrabarrasool Buessa, and Does 1 through 10, alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq. Compl. ¶ 1, ECF No. 1. Defendants seek dismissal of Plaintiff Winningham for failure to prosecute this action pursuant to Fed.R.Civ.P. 41(b). Plaintiff Winningham has not filed a response to this motion, though Plaintiff Thornton opposes it. See ECF No. 61. For the reasons stated below, Defendants' Motion to Dismiss Pursuant to FRCP 41(b) (ECF No. 57) should be GRANTED.
FACTUAL BACKGROUND
Plaintiff Winningham filed this action on March 9, 2022. ECF No. 1. On August 26, 2022, counsel for Plaintiff Winningham moved to withdraw their appearances, which the Court granted on September 20, 2022. ECF Nos. 19, 22. Plaintiff Winningham is therefore proceeding pro se. On December 12, 2022, Defendants moved for summary judgment, and the Court sent Plaintiff Winningham an advice notice regarding that motion. ECF Nos. 36, 39. Based on Defendants' certificate of service of their Motion for Summary Judgment on Plaintiff Winningham, the Court ordered her to respond to the motion by February 6, 2023. ECF No. 49. Subsequently, mail from the Court to Plaintiff Winningham was returned as undeliverable, prompting the Court to enter an order to show cause pursuant to LR 83-12. ECF Nos. 50, 51. That mail was also returned as undeliverable, as was a subsequent notice to Plaintiff Winningham that judgment had been entered in favor of her co-Plaintiff Hannah Thornton pursuant to an offer of judgment, and the Court's advice notice regarding this motion. ECF Nos. 54-55, 60. The docket reflects that Plaintiff Winningham has not filed a notice of change of address or shown cause in writing why the action should not be dismissed, as ordered on January 30, 2023. ECF No. 51.
STANDARD
Federal Rule of Civil Procedure 41(b) allows for dismissal of an action for failure to prosecute. A dismissal for failure to prosecute may be ordered by the Court upon motion by an adverse party, or upon the Court's own motion. See Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). “[D]ismissal for failure to prosecute is particularly appropriate when such a failure is coupled with disobedience to court orders or a disregard of established rules.” Gierloff v. Ocwen, No. 6:15-cv-01311-MC, 2017 WL 815118, at *1 (D. Or. Mar. 1, 2017) (citation omitted).
In determining whether to dismiss for failure to prosecute or comply with a court order, the Court weighs five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
DISCUSSION
Dismissal is appropriate in this case for at least three reasons. First, Plaintiff's failure to respond to the Court's show cause order itself weighs in favor of dismissing this action. See W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1524 (9th Cir. 1990); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995); Fed.R.Civ.P. 41(b).
Second, LR 83-12 provides that “[w]hen the Court sends mail to the last known address of an attorney of record or unrepresented party, and the postal service returns the mail as undeliverable because the attorney or party has failed to notify the Clerk of a changed address, and the failure to notify the Clerk of the change of an address continues for 60 days, then the Court may strike appropriate pleadings, enter a default, or dismiss the action.” More than 60 days have elapsed since the first mail to Plaintiff was returned as undeliverable on January 26, 2023, and subsequent mail was also returned as undeliverable on March 2, 2023, March 13, 2023, and March 15, 2023. ECF Nos. 50, 54, 55, 56. Under LR 83-12, Plaintiff Winningham's failure to notify the court of her change of address provides an additional basis to dismiss this case.
Finally, as explained below, the Pagtalunan five-factor test also strongly favors dismissal.
The public's interest in expeditious resolution of litigation and the Court's need to manage its docket favor dismissal. See Pagtalunan, 291 F.3d at 642 (“It is incumbent upon the Court to manage its docket without being subject to routine noncompliance ....”). The docket reflects that Plaintiff has taken no action in the case since her counsel withdrew on September 20, 2022. The first two factors favor dismissal.
As to the third factor, “[t]o prove prejudice, a defendant must establish that plaintiff's actions impaired defendant's ability to proceed to trial or threatened to interfere with the rightful decision of the case.” Id. Because judgment was already entered in favor of Plaintiff Thornton,the claims by Plaintiff Winningham are the only ones remaining in this case. See ECF No. 53. Plaintiff Winningham's failure to prosecute the case therefore impairs Defendants' right to a decision in this case. Given that Plaintiff Winningham has not responded to the Court's order to show cause and has “offered no clear explanations of what actions [s]he . . . took during the relevant time period[],” Pagtalunan, 291 F.3d at 643, the Court finds the third factor weighs in favor of dismissal. Id.
Plaintiff Thornton opposes this motion because she has not yet received “settlement funds owed to Plaintiff pursuant to the Judgment entered by this Court in Dkt. 53.” Pl. Thornton Resp. Br. 2, ECF No. 61. However, Plaintiff Thornton's ability to enforce the judgment already entered in her favor is not impacted by this motion.
With respect to the availability of less drastic alternatives, the Court has already employed the less drastic alternative of issuing a show cause order. Plaintiff Winningham failed to take advantage of this alternative. Accordingly, this factor also weighs in favor of dismissal. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (finding the requirement that court consider less drastic alternatives may be satisfied by warning the litigant that failure to obey court order will result in dismissal).
Finally, “[p]ublic policy favors disposition of cases on the merits. Thus, this factor weighs against dismissal,” Pagtalunan, 291 F.3d at 643, but only weakly because Plaintiff Winningham's failure to prosecute or to respond to the Court's order to show cause severely impairs disposition on the merits, see United States ex rel. Berglund v. Boeing Co., 835 F.Supp.2d 1020, 1053-54 (D. Or. 2011). Importantly, the fifth factor alone cannot outweigh the other four. In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994).
In sum, although public policy favors disposition on the merits, Plaintiff Winningham's failure to prosecute this case have obstructed the Court's ability to reach the merits. All other factors weigh in favor of dismissal. Accordingly, the district judge should dismiss this action for failure to comply with the Court's show cause order, failure to notify the Clerk of a change of address pursuant to LR 83-12, and for lack of prosecution.
Rather than dismissing the case with prejudice, the Court should order dismissal without prejudice, allowing Plaintiff Winningham the possibility of filing a complaint in the future.
RECOMMENDATION
For the reasons above, because Plaintiff has failed follow court orders and failed to prosecute her case, Defendants' Motion to Dismiss Pursuant to FRCP 41(b) (ECF No. 57) should be GRANTED. Plaintiff Winningham's complaint should be DISMISSED without prejudice and a judgment should be prepared.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991)