1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN WHITAKER, Case No. 21-cv-03092-JSC

8 Plaintiff, ORDER DISMISSING CASE WITH v. 9 PREJUDICE FOR FAILURE TO

PROSECUTE 10 LUCA CUCINA ITALIANA, INC.,, Defendant. Re: Dkt. Nos. 13, 14, 16, 18, 19, 20 11

12 13 Plaintiff filed this Americans with Disabilities Act access case on April 28, 2021 and 14 Defendant answered on June 30, 2021. Under General Order 56, which governs this case, no later 15 than 60 days after service of the complaint the parties were required to conduct a joint site 16 inspection. GO 56 ¶ 7. No more than 35 days following the joint site inspection, the parties were 17 required to hold a settlement meeting. Id. ¶ 8. If the case did not resolve, then within 42 days of 18 the joint site inspection or settlement meeting—whichever occurs first—the parties were required 19 to file either a Notice of Settlement or a Notice of Need for Mediation and Certification of 20 Counsel. Id. ¶ 9. 21 In light of the apparent failure to comply with the scheduling order, on January 4, 2022, the 22 Court ordered the parties to file either a Notice of Settlement of ADA Access Case or Notice of 23 Need for Mediation and Certification of Counsel within 14 days. (Dkt. No. 13.) The parties did not 24 respond to the Court’s Order and on February 14, 2022, the Court issued an Order to Show Cause 25 as to why the action should not be dismissed for failure to prosecute. (Dkt. No. 14.) Plaintiff 26 responded to the Court’s Order to Show Cause contending that Defendant had been unresponsive 27 to emails in July and August 2021 and that on August 30, 2021, defense counsel had responded to 1 country until September 2021. (Dkt. No. 16 at ¶ ¶ 6-8.) Defendant filed a response indicating that 2 Ms. Townsend, Plaintiff’s counsel who filed the response to the Order to Show Cause, was at least 3 the fourth or fifth counsel that she had corresponded with regarding the case and “there were 4 additional telephone and email communications with other counsel which are not reflected in the 5 Townsend Declaration.” (Dkt. No. 18 at 1.) Defendant requested that the Court dismiss the action 6 for failure to prosecute. (Id.) The Court directed Defendant to file a declaration and documents 7 supporting the statements in its response. (Dkt. No. 19.) Defendant’s counsel, Petra Reinecke, 8 thereafter filed a declaration attesting to additional communications and attached emails between 9 counsel. (Dkt. No. 20.) 10 Two things in Defendant’s supplemental filing stand out. First, prior to the window of time 11 referenced in Plaintiff’s Order to Show Cause response, Defendant repeatedly arranged telephonic 12 meetings with Plaintiff’s counsel which Plaintiff’s counsel did not appear for. (Dkt. No. 20-1.) 13 Second, in response to Plaintiff’s request to schedule the site inspection, Defendant’s counsel 14 responded that her client was out of the country until September 13, 2021 and offered to stipulate 15 to a continuance of the deadline to September 22, 2021. (Dkt. No. 20-2.) Plaintiff did not respond 16 to Defendant’s email and did not contact Defendant again until after the Court issued the Order to 17 Show Cause. (Dkt. No. 16 at ¶ 12.) Plaintiff’s response to the Order to Show Cause omits 18 Defendant’s offer to stipulate to extend the site inspection date and Plaintiff’s failure to respond to 19 Defendant’s offer; instead, Plaintiff creates the misimpression that Defendant did no more than 20 state that her client was out of the country. 21 Pursuant to Federal Rule of Civil Procedure 41(b), the Court may dismiss an action for 22 failure to prosecute or to comply with a court order. See Hells Canyon Preservation Council v. 23 U.S. Forest Serv.,

(9th Cir. 2005) (recognizing that a court may sua sponte 24 dismiss an action pursuant to Rule 41(b)). “A Rule 41(b) dismissal must be supported by a 25 showing of unreasonable delay.” Omstead v. Dell, Inc.,

(9th Cir. 2010) 26 (internal citation and quotation marks omitted). In determining whether a Rule 41(b) dismissal is 27 appropriate, the court must weigh the following factors: “(1) the public's interest in expeditious 1 defendants; (4) the public policy favoring disposition of cases on their merits and (5) the 2 availability of less drastic sanctions.”

(quoting Henderson v. Duncan,

, 1423 (9th 3 Cir. 1986)). Dismissal is appropriate “where at least four factors support dismissal...or where at 4 least three factors strongly support dismissal.” Hernandez v. City of El Monte,

, 399 5 (9th Cir. 1998) (internal citation and quotation marks omitted). 6 Here, four of the five Henderson factors weigh in favor of dismissal. “The first two 7 factors—the public interest in expeditious resolution of litigation and the Court's need to manage 8 its docket—relate to the ‘efficient administration of judicial business for the benefit of all litigants 9 with cases pending.’” Nealey v. Transportacion Maritima Mexicana, S.A.,

, 1279 10 (9th Cir. 1980). By failing to comply with the Court’s scheduling order, failing to respond to 11 defense counsel, failing to respond to the order to file a Notice of Settlement of ADA Access Case 12 or Notice of Need for Mediation and Certification of Counsel, and failing to prosecute this action 13 until the Court warned that dismissal was imminent, Plaintiff has delayed adjudication of this 14 action. Further, Plaintiff’s response to the Court’s Order to Show Cause omitted significant 15 information about Plaintiff’s own lack of diligence. (Dkt. No. 16.) Non-compliance with 16 procedural rules and the Court’s orders wastes “valuable time that [the Court] could have devoted 17 to other...criminal and civil cases on its docket.” Ferdik v. Bonzelet,

(9th Cir. 18 1992). 19 As for the third factor, while “the pendency of the lawsuit is not sufficiently prejudicial 20 itself to warrant dismissal,” the delay caused by Plaintiff’s failure to prosecute this action despite 21 the Court’s orders weighs in favor of dismissal. Yourish v. California Amplifier,

, 991 22 (9th Cir. 1999). 23 The fourth factor is the availability of less drastic sanctions. The Court already cautioned 24 Plaintiff that failure to respond would result in dismissal of this action. (Dkt. No. 14.) Thus, the 25 Court has fulfilled its “obligation to warn the plaintiff that dismissal is imminent.” Oliva v. 26 Sullivan,

(9th Cir. 1992); see also Ferdick,

(“A district court's 27 warning to a party that failure to obey the court's order will result in dismissal can satisfy the 1 dismissal. 2 The last factor, which favors disposition on the merits, by definition weighs against 3 || dismissal. Pagtalunan v. Galaza,

(9th Cir. 2002) (“Public policy favors 4 || disposition of cases on the merits. Thus, this factor weighs against dismissal.”). 5 In sum, four of the five relevant factors weigh strongly in favor of dismissing this action in 6 || its entirety. See Pagtalunan,

(affirming dismissal where three factors favored 7 dismissal, while two factors weighed against dismissal). The Court therefore DISMISSES this 8 action with prejudice pursuant to Federal Rule of Civil Procedure 41.1 9 10 IT IS SO ORDERED. 11 Dated: March 28, 2022

’ 4 JACQUELINE SCOTT CORLE United States Magistrate Judge 15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28 ' All parties have consented to the jurisdiction of a magistrate judge pursuant to

(c). (Dkt. Nos. 7, 12.)