1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARVIN HERNANDEZ, individually Case No.: 3:18-cv-01324-JAH-MSB and on behalf of all others similarly 12 situated, ORDER DISMISSING ACTION 13 WITHOUT PREJUDICE Plaintiff, 14 v. 15 AUTO ZONE, INC., et al., 16 Defendants. 17

18 On September 6, 2018, Plaintiff Marvin Hernandez, individually and on behalf of 19 all others similarly situated, filed a first amended class action complaint under the Private 20 Attorneys General Act of 2004 (“PAGA”) against Defendants Auto Zone, Inc., 21 Autozoners, LLC, Autozone Parts, Inc., (“Defendants”) and Does 1-50 for wage and hour 22 violations of the California Labor Code and unlawful business practices under the 23 California Business and Professions Code. (ECF No. 15). Specifically, Plaintiff’s 24 Complaint alleges claims for (1) wage payment violations, (2) meal and rest period 25 violations, (3) overtime violations, (4) wage statement violations, (5) waiting time penalties 26 for failure to pay wages in a timely manner, and (6) unlawful business practices. (Id.). 27 On September 20, 2018, Defendants filed a Motion to Compel Arbitration and Stay 28 Matter Pending Arbitration or, in the Alternative, Motion to Dismiss Plaintiff’s Complaint, 1 as well as a Request for Judicial Notice. (ECF Nos. 17, 17-2). On January 4, 2019, the 2 Court issued an Order Granting that Motion and Request. (ECF No. 23). Specifically, 3 after Plaintiff failed to oppose the existence or merits of the two purported arbitration 4 agreements, this Court found the agreements were “valid, irrevocable, and enforceable,” 5 and therefore binding on the parties. (Id. at 3). Additionally, the Court took Judicial Notice 6 of a complaint filed in Alvarez v. Autozone, Inc., Case No. 5:14-cv-02471-VAP-SP. (Id. 7 at 3-4). Upon review, the Court found that Plaintiff’s PAGA claim against Defendants was 8 substantially similar to claims raised in Alvarez, such that Plaintiff’s PAGA claim was 9 severed and stayed pursuant to the first-to-file rule. (Id. at 4). Therefore, the Court ordered 10 all proceedings in this case stayed pending the outcome of the parties’ arbitration and the 11 resolution of Alvarez. (Id.). 12 On May 14, 2021, the Court issued an Order requiring the parties to provide a status 13 update of the case. (ECF No. 27). The parties subsequently submitted a Joint Status Report 14 on June 11, 2021, wherein they stated that “Plaintiff and Defendants have agreed to 15 stipulate to join all individual claims by Plaintiff against Defendants from this action and 16 the subsequently filed state action into one proceeding and to then submit as a whole to 17 arbitration. The parties will be filling a stipulation to this effect within the next 30 days.” 18 (ECF No. 28). 19 On January 26, 2022, the parties filed a Stipulation to Submit Overlapping Matter to 20 Arbitration and Continue Stay of Proceedings. (ECF No. 30). On January 27, 2022, the 21 Court granted the Stipulation and ordered Plaintiff Marvin Hernandez to submit his 22 individual claims in the Federal Action and the State Action to final and binding arbitration 23 on an individual basis only, pursuant to the terms of the Agreements, in a single proceeding. 24 (ECF No. 31). The Court further ordered that the above-captioned action will remain 25 stayed pending the outcome of the individual arbitration proceedings. (Id.). 26 On December 27, 2022, the Court ordered the parties to submit a joint status report 27 regarding the status of arbitration proceedings within 45 days of its order. (ECF No. 32). 28 The Court further ordered that the parties shall thereafter file a joint status report every 90 1 days. (Id.) On February 10, 2023, the parties filed a joint status report stating that the 2 arbitration is scheduled for August 22, 2023. (ECF No. 35). On May 5, 2023, the parties 3 filed another joint status report stating that the parties have agreed to mediate this matter 4 on September 13, 2023, and that the parties have stayed the arbitration pending mediation. 5 (ECF No. 38). No joint status report has been filed since May 5, 2023. 6 On December 20, 2023, the Court ordered the parties to show cause as to why the 7 action should not be dismissed from failing to comply with the Court’s December 27, 2022 8 order requiring the parties to file a joint status report every 90 days. (ECF No. 40). The 9 parties were directed to respond to the order to show cause on or before January 3, 2024. 10 (Id.). To date, no party has responded. Because the parties have failed to respond to the 11 Court’s December 20, 2023 order, the Court finds dismissal of this action appropriate. 12 A district court may dismiss an action for failure to comply with a court order. See 13 Fed. R. Civ. P. 41(b); Ferdik v. Bonzelet,

(9th Cir. 1992). “In 14 determining whether to dismiss a case for failure to comply with a court order the district 15 court must weigh five factors including: ‘(1) the public’s interest in expeditious resolution 16 of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 17 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 18 availability of less drastic alternatives.’”

at 1260-61 (citing Thompson v. Housing Auth., 19

(9th Cir. 1986); Henderson v. Duncan,

(9th Cir. 20 1986)). 21 The first factor, the public’s interest in expeditious resolution of litigation, always 22 weighs in favor of dismissal. Yourish v. California Amplifier,

(9th Cir. 23 1999). 24 The second factor, the Court’s need to manage its docket, similarly favors dismissal. 25 Indeed, it “is incumbent upon the Court to manage its docket without being subject to 26 routine noncompliance of litigants[.]” Pagtalunan v. Galaza,

(9th Cir. 27 2002). This action has been stayed since January 2022. The parties’ failure to provide the 28 Court a written response to show cause hinders the Court’s ability to control its own docket 1 || and therefore favors dismissal. 2 The third factor, risk of prejudice to Defendants, neither weighs in favor nor against 3 || dismissal given that Defendants are equally responsible for their failure to file a joint status 4 ||/report with Plaintiff. 5 While the fourth factor, the public policy favoring disposition on the merits of an 6 ||action, weighs against dismissal, “this factor ‘lends little support’ to a party . . . whose 7 ||conduct impedes progress in that direction.” In re Phenylpropanolamine (PPA) Prods. 8 || Liab. Litig.,

(9th Cir. 2006). Here, the parties’ failure to abide by the 9 || Court’s order has impeded disposition on the merits. 10 With respect to the fifth factor, the Court finds there are no less drastic alternatives 11 dismissal. In the Ninth Circuit, “warning a plaintiff that failure to obey a court order 12 || will result in dismissal can suffice to meet the ‘consideration of alternatives’ requirement.” 13 || Malone vy. U.S. Postal Serv.,

(9th Cir. 1987). Indeed, here, both parties 14 || were expressly warned that “[flailure to respond will result in the dismissal of this action.” 15 || (ECF No. 40). 16 Consideration of the five factors supports dismissal. Accordingly, IT IS HEREBY 17 ||} ORDERED the action is DISMISSED without prejudice for failure to comply with the 18 || Court’s order. 19 || DATED: January 8, 2024 yt Mise 21 JOHN A. HOUSTON ITED STATES DISTRICT JUDGE 23 24 25 26 27 28