Case 1:20-cv-01725-JLT-SKO Document 33 Filed 03/21/22 Page 1 of 6
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`UNITED STATES DISTRICT COURT
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`EASTERN DISTRICT OF CALIFORNIA
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` Plaintiffs,
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`v.
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`JOSEPH BERRY,
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`PRAXAIR DISTRIBUTION, INC.,
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`Defendant.
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`Case No.: 1:20-cv-1725 JLT SKO
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`ORDER GRANTING DEFENDANT’S MOTION
`TO DISMISS
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`(Doc. 30)
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`Joseph Berry asserts that there was a step in the handicap exit at Praxair Distribution Inc.’s
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`location, which did not comply with the Americans with Disabilities Act. Berry asserts this step
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`caused him to slip and fall, which caused him injury. (See Doc. 3-1 at 5.)
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`Praxair seeks dismissal of the action pursuant to Rule 41 of the Federal Rules of Civil
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`Procedure. (Doc. 30.) Berry has not opposed the motion. The Court finds the matter suitable for
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`decision without oral arguments, and no hearing date will be set pursuant to Local Rule 230(g) and
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`General Order 618. Because Berry failed to take action to prosecute this action and failed to comply
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`with several orders of this Court, the motion to dismiss is GRANTED.
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`I.
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`Procedural History
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`Berry initiated this action by filing a complaint for personal injuries in Fresno County Superior
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`Court, Case No. 20CECG03205, on October 29, 2020. (Doc. 3-1 at 2.) Praxair filed a Notice of
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`Removal on December 4, 2020 (Doc. 7), thereby initiating the matter before this Court.
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`Case 1:20-cv-01725-JLT-SKO Document 33 Filed 03/21/22 Page 2 of 6
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`The Court issued its new civil case documents on December 8, 2020, including its “Order
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`Setting Mandatory Scheduling Conference,” which informed the parties that a conference with the
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`Court was set for February 25, 2021. (Doc. 8 at 1.) The Court directed the parties to prepare a Joint
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`Scheduling Report in advance of the conference, and indicated “[a]ttendance at the Scheduling
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`Conference is mandatory upon each party not represented by counsel or by retained counsel.” (Id. at 2,
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`emphasis in original.) In addition, the Court informed the parties that terminating sanctions, including
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`dismissal, may result “[s]hould counsel or a party appearing pro se fail to appear at the mandatory
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`scheduling conference, or fail to appear at the mandatory scheduling conference, or fail to comply with
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`the directions….” (Id. at 6, emphasis omitted.)
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`On February 18, 2021, Praxair filed a Rule 26 Scheduling Report, and informed the Court that
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`Berry did not respond to a request for information for the report. (Doc. 11 at 1.) Berry did not appear
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`at the scheduling conference, so the Court continued it. (Doc. 13.) At that time, the Court ordered:
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`“Failure to comply with this order may be grounds for the imposition of sanctions on… any party or
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`parties who cause non-compliance with this order.” (Id.) Again, Berry failed to appear at the
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`conference, so the Court continued the matter again. (Doc. 16.)
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`At the continued conference, Berry appeared telephonically. (Doc. 18.) The Court issued the
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`scheduling order soon thereafter, which set the deadlines governing the action. (Doc. 19.) The Court
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`ordered the parties to exchange initial disclosures no later than April 9, 2021. (Id. at 1, 2.) In addition,
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`the Court ordered the parties to complete non-expert discovery no later than September 30, 2021. (Id.
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`at 1, 3.) Praxair reports that to date, it has not received initial disclosures from Berry or responses to
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`the discovery requests Praxair served on March 24, 2021. (Doc. 30-1 at 3.)
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`The Court ordered the parties to file a joint statement proposing settlement conference dates on
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`October 28, 2021, noting they had failed to comply with this instruction from the Scheduling Order.
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`(Doc. 22.) In addition, the Court indicated: “Failure to comply with this order may be grounds for
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`the imposition of sanctions on any and all counsel as well as any party or parties who cause non-
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`compliance with this order.” (Id., emphasis in original.) On November 12, 2021, Praxair filed a
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`status report and reported “Defense Counsel unsuccessfully attempted to meet and confer in writing and
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`by telephone with [Berry] regarding proposed settlement conference dates.” (Doc. 27 at 1, emphasis
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`omitted.) In addition, Praxair requested the Court “order Plaintiff to comply with Rule 26 and prior
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`Court orders,” and requested permission to proceed with motions to compel discovery. (Doc. 27 at 2.)
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`However, the magistrate judge did not issue an order in response to the requests made in the status
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`report.
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`On February 18, 2022, Praxair filed the motion to dismiss for lack of prosecution now pending
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`before the Court. (Doc. 30.) According to Praxair, the company informed Berry of its intent to file a
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`motion to dismiss for lack of prosecution prior to the filing of the motion. (Doc. 30-1 at 6, citing
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`Nissen Decl. ¶ 24 [Doc. 30-2 at 6].) Praxair did not receive a response from Berry (id.), and no
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`opposition to the motion to dismiss was filed with the Court.
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`II.
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`Failure to Prosecute and Obey the Court’s Orders
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`Pursuant to Rule 41 of the Federal Rules of Civil Procedure, "If [a] plaintiff fails to prosecute
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`or to comply with . . . a court order, a defendant may move to dismiss the action or any claim against
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`it. Fed. R. Civ. P. 41(b). Likewise, this Court’s Local Rules provide: “Failure of counsel or of a party
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`to comply with . . . any order of the Court may be grounds for the imposition by the Court of any and
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`all sanctions . . . within the inherent power of the Court.” LR 110.
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`The Ninth Circuit explained, “District courts have inherent power to control their dockets,” and
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`in exercising that power, a court may impose sanctions including dismissal of an action. Thompson v.
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`Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action
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`with prejudice based upon a party’s failure to obey a court order, failure to prosecute an action, or
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`failure to comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
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`1992) (dismissal for failure to comply with an order requiring amendment of complaint); Malone v.
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`U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court
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`order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute).
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`III. Discussion and Analysis
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`To determine whether to dismiss for failure to prosecute and failure to comply with Court
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`orders, the Court must consider several factors, including: "(1) the public's interest in expeditious
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`resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the
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`defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability
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`Case 1:20-cv-01725-JLT-SKO Document 33 Filed 03/21/22 Page 4 of 6
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`of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61;
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`Thomspon, 782 F.2d at 831.
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`A.
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` Public interest and the Court’s docket
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`In the case at hand, the public’s interest in expeditiously resolving this litigation and the
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`Court’s interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier,
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`191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always
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`favors dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in
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`managing their dockets without being subject to noncompliant litigants). This Court cannot, and will
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`not hold, this case in abeyance based upon Berry’s failure to comply with the Court’s ordered
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`deadlines and failure to take action to prosecute his claims. Indeed, it appears no action has taken in
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`this matter other than his appearance at the third scheduling conference set by the Court. Accordingly,
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`these factors weigh in favor of dismissal of the action.
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`B.
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`Prejudice to Defendant
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`To determine whether Praxair has been prejudiced, the Court must “examine whether the
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`plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of
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`the case.” Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 618 (9th
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`Cir. 1985)) In this case, Berry failed to comply with the Court’s orders to appear at two scheduling
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`conference, to meet and confer with Praxair, and to engage in discovery. These failures significantly
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`impairs Praxair’s ability to prepare for a trial. Moreover, a presumption of prejudiced arises when a
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`plaintiff unreasonably delays the prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524
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`(9th Cir. 1976). Accordingly, this factor weighs in favor of dismissal.
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`C.
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`Consideration of less drastic sanctions
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`The Court “abuses its discretion if it imposes a sanction of dismissal without first considering
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`the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical
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`Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, the Ninth Circuit has determined that a
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`court’s warning to a party that his failure to obey the court’s order will result in dismissal can satisfy
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`the “consideration of alternatives” requirement. See Malone, 833 F.2d at 133; Ferdik, 963 F.2d at
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`1262. As the Ninth Circuit explained, “a plaintiff can hardly be surprised” by a sanction of dismissal
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`Case 1:20-cv-01725-JLT-SKO Document 33 Filed 03/21/22 Page 5 of 6
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`“in response to willful violation of a pretrial order.” Malone, 833 F.2d at 133.
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`The Court warned Berry repeatedly that his failure to comply with orders may result in the
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`imposition of terminating sanctions. For example, in the “Order Setting Mandatory Scheduling
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`Conference” dated December 8, 2020, the Court informed the parties that dismissal, may result
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`“[s]hould counsel or a party appearing pro se fail to appear at the mandatory scheduling conference, or
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`fail to appear at the mandatory scheduling conference.” (Doc. 8 at 6, emphasis omitted.) When Berry
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`failed to appear for the scheduling conference—forcing a continuation—the Court again warned,
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`“Failure to comply with this order may be grounds for the imposition of sanctions on… any party or
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`parties who cause non-compliance with this order.” (Doc. 13, emphasis omitted.) Despite these
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`orders, Berry twice failed to appear for conferences with the Court. Furthermore, the Court informed
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`Berry that his failure to comply with the scheduling order may result in the imposition of sanctions,
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`“including… dismissal.” (Doc. 19 at 7, emphasis omitted.)
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`Significantly, these repeated warnings satisfy the requirement that the Court consider lesser
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`sanctions. See Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424; Titus, 695 F.2d at 749 n.6.
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`Indeed, the Court need only warn a party once that the matter would be dismissed for failure to
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`comply to satisfy the requirement. Id.; see also Titus v. Mercedes Benz of North America, 695 F.2d
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`746, 749 n.6 (3d Cir. 1982) (identifying a “warning” as an alternative sanction). Accordingly, this
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`factor weighs in favour of dismissal of the action.
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`D.
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`Public policy
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`Given Berry’s failure to prosecute the action— and his corresponding failure to comply with the
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`Court’s orders — the policy favoring disposition of cases on their merits is outweighed by the factors in
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`favor of dismissal. See Malone, 833 F.2d at 133, n.2 (explaining that although “the public policy
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`favoring disposition of cases on their merits … weighs against dismissal, it is not sufficient to outweigh
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`the other four factors”).
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`IV. Conclusion and Order
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`Plaintiff failed to prosecute this action and failed to comply with the Court’s orders dated
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`December 8, 2020 (Doc. 8); February 25, 2021 (Doc. 13); March 31, 2021 (Doc. 19); and October 28,
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`Case 1:20-cv-01725-JLT-SKO Document 33 Filed 03/21/22 Page 6 of 6
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`2021 (Doc. 22). As set forth above, the factors set forth by the Ninth Circuit weigh in favor of
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`dismissal of the matter. Accordingly, the Court ORDERS:
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`Defendant’s motion to dismiss (Doc. 30) is GRANTED.
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`This action is DISMISSED with prejudice; and
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`The Clerk of Court is directed to close this action.
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`IT IS SO ORDERED.
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` Dated: March 21, 2022
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