1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 DANIEL P. BROWN, Case No. 21-cv-08098-LB

12 Plaintiff, ORDER TO SHOW CAUSE 13 v.

14 JOCK GORDON, et al., 15 Defendants. 16 17 INTRODUCTION 18 The defendant filed a motion to dismiss the case for the plaintiff’s failure to prosecute it and 19 noticed it for a hearing on January 19, 2023, at 9:30 a.m. The plaintiff is representing herself 20 because her counsel withdrew. The opposition or statement of non-opposition to the motion to 21 dismiss was due on December 23, 2022, and was not filed. Under the circumstances, the court 22 extends the time to oppose the motion to January 5, 2023. The plaintiff may mail the chambers copy 23 to [email protected]. The court also issues this order to notify the plaintiff of the 24 consequences if she does not respond to the motion or participate in this litigation. She may be 25 subject to sanctions, including monetary sanctions and dismissal of her case for her failure to 26 prosecute it. 27 STATEMENT 1 the plaintiff. That was meant to resolve the case entirely. (The court has held several hearings with 2 the parties and knows the procedural posture of the case well, partly because the parties argued the 3 filed motions and partly because the court continued to have case-management conferences in aid 4 of the parties’ settlement efforts.) Since then, as the docket reveals, the settlement failed.1 At the 5 parties’ request, the court ordered arbitration.2 There was a mediation session in September, but 6 apparently the plaintiff was intoxicated.3 The docket reflects some ongoing mediation efforts.4 7 The plaintiff’s counsel withdrew.5 Now, the defendant has moved to dismiss the case based on the 8 plaintiff’s refusal to participate in the litigation, including in the mediation and by her failure to 9 file the arbitration complaint pursuant to the parties’ agreement.6 10 The court will hold a hearing on January 19, 2023, at 9:30 a.m. by Zoom. 11 12 ANALYSIS 13 The court orders the plaintiff to respond to the motion (either by opposing it or filing a statement 14 of non-opposition) by January 5, 2023) and to appear at the January 19, 2023 hearing by Zoom. If 15 she does not, she risks sanctions, including terminating sanctions of dismissal of her case for her 16 failure to prosecute it or monetary sanctions. 17 18 1. Terminating sanctions 19 Federal Rule of Civil Procedure 41(b) provides that “[i]f the plaintiff fails to prosecute or to 20 comply with these rules or a court order, a defendant may move to dismiss the action or any claim 21 against it.” A dismissal order “operates as an adjudication on the merits.” Fed. R. Civ. P. 41(b). 22 23 24 1 Joint Status Report – ECF No. 48. Citations refer to the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 25 2 Order – ECF 49–50. 26 3 See generally Docket; Gordon Decl. – ECF No. 67 at 6 (¶ 29). 4 See generally Docket. 27 5 Order – ECF No. 60. 1 “Rule 41(b) specifically provides that the failure of the plaintiff to prosecute his claim is 2 grounds for involuntary dismissal of the action. The courts have read this rule to require 3 prosecution with ‘reasonable diligence’ if a plaintiff is to avoid dismissal.” Anderson v. Air W., 4 Inc.,

(9th Cir. 1976). “This court has consistently held that the failure to 5 prosecute diligently is sufficient by itself to justify a dismissal, even in the absence of a showing 6 of actual prejudice to the defendant from the failure.”

“The law presumes injury from 7 unreasonable delay.”

“However, this presumption of prejudice is a rebuttable one and if there is 8 a showing that no actual prejudice occurred, that factor should be considered when determining 9 whether the trial court exercised sound discretion.”

10 In Yourish v. California Amplifier, the Ninth Circuit applied the same five-factor standard 11 considered in Federal Rule of Civil Procedure 37(b) cases in a Rule 41(b) case.

, 989– 12 92 (9th Cir. 1999). “Under our precedents, in order for a court to dismiss a case as a sanction, the 13 district court must consider five factors: (1) the public’s interest in expeditious resolution of 14 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 15 the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic 16 alternatives.” Id. at 990 (cleaned up). “We may affirm a dismissal where at least four factors support 17 dismissal . . . or where at least three factors strongly support dismissal.” Id. (cleaned up). “Although 18 it is preferred, it is not required that the district court make explicit findings in order to show that it 19 has considered these factors and we may review the record independently to determine if the district 20 court has abused its discretion.” Id. (cleaned up). “The sub-parts of the fifth factor are whether the 21 court has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant 22 party about the possibility of case-dispositive sanctions.” Conn. Gen. Life Ins. Co. v. New Images of 23 Beverly Hills,

(9th Cir. 2007).7 24

25 7 “This ‘test,’” the Ninth Circuit has explained, “is not mechanical.” “It provides the district court with a way to think about what to do, not a set of conditions precedent for sanctions or a script that 26 the district court must follow: 27 Like most elaborate multifactor tests, our test has not been what it appears to be, a 1 “A terminating sanction, whether default judgment against a defendant or dismissal of a 2 plaintiff’s action, is very severe.”

3 A party suffers sufficient prejudice to warrant case-dispositive sanctions where the disobedient 4 party’s actions “impair the defendant’s ability to go to trial or threaten to interfere with the rightful 5 decision of the case.” See In re Phenylpropanolamine (PPA) Prods. Liab. Litig.,

, 6 1227 (9th Cir. 2006) (cleaned up). 7 Before ordering a terminating sanction, a court must warn the plaintiff and try other sanctions 8 first. For example, a district court’s failure to warn a party that dismissal is being considered as a 9 sanction weighs heavily against the sanction. U.S. ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. 10 Co.,

(9th Cir. 1988). Although “[a]n explicit warning is not always required, at 11 least in a case involving ‘egregious circumstances,’” “[i]n other circumstances, the failure to warn 12 may place the district court’s order in serious jeopardy.”

Indeed, “[f]ailure to warn has 13 frequently been a contributing factor in [Ninth Circuit] decisions to reverse orders of dismissal.” 14

(cleaned up). 15 16 2. Monetary sanctions: Federal Rules of Civil Procedure 37(d)(3) and (b)(2)(C) 17 Rules 37(d)(3) and (b)(2)(C) provide that courts must require the party failing to act, the attorney 18 advising that party, or both, to pay to award the reasonable expenses, including attorney’s fees, 19 caused by the failure, unless the failure was substantially justified or other circumstances make an 20 award of expenses unjust. “Under Rule 37(b)(2), which has the same language as Rule 37(d), the 21 burden of showing substantial justification and special circumstances is on the party being 22 sanctioned.” Hyde & Drath v. Baker,

(9th Cir. 1994). 23 Federal courts use the lodestar method to determine a reasonable attorney’s fee award. Hensley 24 v. Eckerhart,

(1983); Jordan v. Multnomah Cnty.,

, 1262 (9th 25

26 amounts to a way for a district judge to think about what to do, not a series of conditions precedent before the judge can do anything, and not a script for making 27 what the district judge does appeal-proof. ] Cir. 1987). The court calculates a “lodestar amount” by multiplying the number of hours counsel 2 || reasonably spent on the litigation by a reasonable hourly rate. See Morales v. City of San Rafael, 3

(9th Cir. 1996). The burden of proving that claimed rates and number of hours 4 || worked are reasonable is on the party seeking the fee award. Blum v. Stenson,

, 897 5 (1984). The court may adjust the award from the lodestar figure upon consideration of additional 6 || factors that may bear upon reasonableness. Kerr v. Screen Extras Guild, Inc.,

(9th 7 {| Cir. 1975). 8 The court asks the defendant’s counsel to file a short summary by January 5, 2023, with an 9 || estimate of the fees his client has incurred by the plaintiffs failure to participate in mediation or 10 || file the arbitration complaint (resulting in the current motion) and to serve it on the plaintiff. This 11 will serve as a warning to the plaintiff of the monetary sanctions she faces.

5 3 3. Order to Appear on January 19, 2023 and Warning to the Plaintiff 5 4 The court orders the plaintiff to appear in person one) via Zoom at the January 19, 2023, 3 13 hearing at 9:30 a.m. The link is available at https://www.cand.uscourts. gov/judges/beeler-laurel- 6 lb/. If she does not, she risks the court’s imposition of sanctions, including a monetary sanction 5 7 awardable to the defendant for any costs it incurs because of her failure to prosecute her case. 5 18 Ultimately, if the plaintiff does not participate in her litigation, she risks dismissal of her case for

19 failure to prosecute, which will result in a judgment being entered in favor of the defendant.

20 54 IT IS SO ORDERED. Dated: December 25, 2022 EC Lit 23 LAUREL BEELER United States Magistrate Judge 25 26 27 28