Opinion
3:22-cv-00844-SB
06-02-2023
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Asson Gelly (“Gelly”) filed this action on June 10, 2022, against Defendant Safe Transportation, Inc. (“Safe”), alleging claims of unpaid wages under the Fair Labor Standards Act and related state law claims. (ECF No. 1.) On September 12, 2022, Safe answered the complaint and asserted a counterclaim for “theft/conversion.” (ECF No. 8.) Gelly now moves to dismiss Safe's counterclaim, or in the alternative, seeks an order requiring Safe to make the counterclaim more definite and certain, dismissing or striking certain remedies listed in Safe's prayer for relief, and striking portions of Safe's first and second affirmative defenses. (See Pl.'s Mot. at 2, ECF No. 9.) The Court has jurisdiction pursuant to 28 U.S.C. § 1331, but not all parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636. Gelly requested oral argument but the Court finds the matter suitable for disposition without oral argument. See LR 7-1(d)(1).
For the reasons that follow, the Court recommends that the district judge grant Gelly's motion to dismiss Safe's counterclaim, deny as moot Gelly's motion to dismiss or strike the relief sought for the counterclaim, and grant Gelly's motion to strike portions of Safe's first and second affirmative defenses.
PROCEDURAL BACKGROUND
In its answer to Gelly's unpaid wage claim, Safe pleaded a theft/conversion counterclaim alleging that Gelly took property from Safe's place of business without permission. (Def.'s Answer at 5.) On October 3, 2022, Gelly filed a motion to dismiss Safe's counterclaim. (See ECF No. 9.) In the motion, Gelly represented that Safe's counsel refused to confer regarding the motion, despite the fact that Gelly's counsel called Safe's counsel four times and sent several emails. (See Pl.'s Mot. at 1-2, certifying that “[Safe] willfully refused to confer . . . [s]pecifically, [Gelly's] counsel left voicemails for [Safe] seeking to confer on the [] motion[] ¶ 9/19, 9/21, 9/30, and 10/3 . . . [and] sent [Safe] emails seeking to confer . . . on 9/14, 9/16, 9/19, 9/21, 9/26, 9/27, and 9/30” but “[Safe] did not respond”). Safe's counsel's only response was one email suggesting Safe would consider amending its answer, but Safe did not confer further, did not return subsequent phone calls, did not file an amended answer, and did not respond to subsequent emails. (Id. at 2.)
On October 24, 2022, the Court stayed briefing on all pending motions for the purpose of the parties' participation in a December 2022 settlement conference, which was unsuccessful. (See ECF Nos. 10, 14.) On January 24, 2023, the Court held a status conference to set new deadlines for the pending motions, including Gelly's motion to dismiss Safe's counterclaim. (See ECF No. 15.) Safe's counsel failed to appear for the status conference. (See ECF No. 16.) The Court ordered Safe to file a response to Gelly's motion to dismiss, or an amended answer, by February 3, 2023. (See id.) Safe ignored the Court's order.
DISCUSSION
Gelly argues that the Court should dismiss Safe's counterclaim on the merits. (Pl.'s Mot. at 3.) Safe did not respond to Gelly's motion to dismiss, nor file an amended answer. For the reasons discussed below, the Court finds that Safe has abandoned its counterclaim.
I. ABANDONMENT OF CLAIM
Safe refused to confer with Gelly's counsel and failed to respond to Gelly's motion to dismiss or otherwise defend its theft/conversion counterclaim. Safe's failure to respond to Gelly's motion to dismiss its counterclaim “is a concession of it on the merits” and is grounds for dismissal. Yentz v. Nat'l Credit Adjusters, LLC, No. 3:20-cv-01364-AC, 2021 WL 1277961, at *4 (D. Or. Feb. 15, 2021) (citing Steger v. Peters, No. 6:16-cv-02093-YY, 2018 WL 3430671, at *2 (D. Or. 2018)), findings and recommendation adopted, 2021 WL 1270457 (D. Or. Apr. 6, 2021); cf.Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 888 (9th Cir. 2010) (“A plaintiff who makes a claim . . . in his complaint, but fails to raise the issue in response to a defendant's motion to dismiss . . . has effectively abandoned his claim[.]”).
A. Applicable Law
“Unlike other district courts, the District of Oregon has not implemented a local rule that ‘failure of an opposing party to file points and authorities in response to any motion . . . constitutes a consent to the granting of the motion.'” Yentz, 2021 WL 1277961, at *4 (quoting Mayes v. Smart & Final, Inc., 759 Fed.Appx. 628, 630 (9th Cir. 2019) and citing D. Nev. Civ. R. 7-2(d)). “Nor does the District of Oregon have a local rule stating that ‘[w]ithin 14 days of the date of service or at such other time as the Court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion [and i]f such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded.'” Id. (citing D.C. Cir. R. 7(b)).
“There are many cases in this district, however, that are in accord with cases from those districts that have such local rules.” Fletcher v. U.S. Dep't of Agric., No. 3:20-cv-1243-SI, 2021 WL 1857407, at *1 (D. Or. May 10, 2021) (collecting cases). “Additionally, ‘District courts have inherent power to control their dockets,' including by imposing the sanction of dismissal.” Id. (citing Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986)). “Under Rule 41(b) of the Federal Rules of Civil Procedure, the Court may dismiss an action ‘[i]f the plaintiff fails to prosecute or to comply with . . . a court order.'” Id. (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)); see also Hensley v. Interstate Meat Distrib., Inc., No. 3:19-cv-0533-YY, 2020 WL 1677658, at *4 (D. Or. Jan. 10, 2020), findings and recommendation adopted, 2020 WL 1674350 (D. Or. Apr. 6, 2020) (“Given the circumstances here, dismissal is appropriate [because the p]laintiff has failed to file any response to defendant's motion to dismiss, even though the court granted him an extension of time to do so.”).
“Before dismissing a complaint, whether for failure to prosecute or failure to follow a court order (such as [a] Scheduling Order[]) or failure to follow local rules, the Ninth Circuit instructs that a district court must consider 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 the [opposing party]; (4) public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.” Id. (collecting cases).
B. Analysis
As discussed above, Safe refused to confer on Gelly's motion to dismiss, did not appear at a status conference regarding scheduling a deadline to respond to the motion to dismiss, and did not respond to the motion, either within fourteen days of service as required by the local rules (see LR 7(e)(1) (“A party must file and serve any response within 14 days after service of the motion.”)), or by the extended deadline ordered by the Court. (See ECF No. 16.) Thus, Safe violated Local Rule 7(e)(1) and the Court's scheduling order. The Court therefore turns to the five factors established by the Ninth Circuit to evaluate whether the Court should dismiss Safe's counterclaim. SeeFletcher, 2021 WL 1857407, at *2 (finding that the plaintiff failed timely to respond to the defendant's motion to dismiss and violated a scheduling order regarding the motion response and the court therefore “weighs the five factors established by the Ninth Circuit”).
First, “[t]he public's interest in expeditious resolution of litigation and the Court's need to manage its docket favor dismissal.” Bondick v. Homes for Good Hous. Agency, No. 6:22-cv-00899-MK, 2023 WL 2772246, at *1 (D. Or. Mar. 17, 2023) (citing Pagtalunan, 291 F.3d 639, 642 (9th Cir. 2002)); see alsoPagtalunan, 291 F.3d at 642 (“It is incumbent upon the Court to manage its docket without being subject to routine noncompliance[.]”). Safe failed to respond to the Court's scheduling order despite the Court's extension of the deadline to respond, and therefore the first two factors favor dismissal. SeePagtalunan, 291 F.3d at 642 (“The trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest.”); see alsoFletcher, 2021 WL 1857407, at *3 (“The Court must ‘manage its docket without being subject to routine noncompliance of litigants[.]'” (quoting Pagtalunan, 291 F.3d at 642)).
The Court also considers the risk of prejudice to the opposing party, and here Gelly is prejudiced by the delays caused by Safe's refusal to confer and failure to respond to the motion. SeeFletcher, 2021 WL 1857407, at *3 (finding an unreasonable delay where, inter alia, the “[d]efendants filed a relatively short motion, to which [the p]laintiff did not respond”).
With respect to the availability of less drastic alternatives, the Court sua sponte issued a scheduling order allowing Safe additional time to respond to the motion to dismiss or to file an amended answer, but still Safe did not defend its counterclaim. Seeid. (“Less drastic action could be providing Plaintiff with more time to respond, although Plaintiff has not been responsive to the Court's previous opportunities.”).
Finally, because “[p]ublic policy favors disposition of cases on the merits ....this factor weighs against dismissal[.]” Pagtalunan, 291 F.3d at 643. Safe, however, “has ignored the Court's Scheduling Order and the Local Rules, and has refused to prosecute” its counterclaim. Fletcher, 2021 WL 1857407, at *3. “As the Ninth Circuit has explained, ‘where the [party] themselves prevent their cases from moving forward, the public policy favoring resolution on the merits cannot weigh much, if at all, in their favor.'” id. (quoting In re Phenylpropanolamine(PPA) Prod. Liab. Litig., 460 F.3d 1217, 1234 (9th Cir. 2006)). The Court therefore finds that this factor is neutral.
Weighing the five factors, the Court finds that on balance the factors favor dismissal of Safe's counterclaim. The Court therefore recommends that the district judge dismiss Safe's counterclaim with prejudice. SeeJohnson v. Oregon, No. 3:21-cv-00702-MO, 2022 WL 1224897, at *5 (D. Or. Apr. 26, 2022) (granting the defendant's motion to dismiss with prejudice where the plaintiff failed to respond to the defendant's motion and concluding that “the absence of responsive briefing [is a] concession on the merits”); cf. Designer Skin, LLC v. S&L Vitamins, Inc., 560 F.Supp.2d 811, 827 (D. Ariz. 2008) (“[T]he Court construes this failure to respond as an abandonment of this counterclaim. The Court therefore will grant summary judgment to [the plaintiff] on [the defendant's] counterclaim for unfair competition.”).
II. MOTION TO STRIKE
Gelly also moves to “strike as immaterial the bulk of [Safe's] Fi[r]st and Second Affirmative Defenses.” (Pl.'s Mot. at 2.) In its answer, Safe asserts the affirmative defenses of “no enterprise liability” and the “motor carrier exemption.” (Def.'s Answer at 2-4.) Gelly argues that the “legal argument, case citations, and case-law analysis” included with Safe's affirmative defenses violate FED. R. CIV. P. 8(d)(1). (See id. at 10; see alsoFED. R. CIV. P. 8(d)(1) (allegations in a pleading must be “simple, concise, and direct”)).
For the same reasons discussed above, the Court finds that Safe's failure to respond to Gelly's motion to strike is a concession on the merits. See, e.g., Johnson, 2022 WL 1224897, at *5 (“[T]he absence of responsive briefing [is a] concession on the merits.”). Accordingly, the Court recommends that the district judge strike the “legal argument, case citations, and case-law analysis” included in Safe's first and second affirmative defenses.
CONCLUSION
For all of these reasons, the Court recommends that the district judge GRANT Gelly's motion to dismiss Safe's counterclaim, DENY AS MOOT Gelly's motion to strike Safe's relief sought for the counterclaim, and GRANT Gelly's motion to strike portions of Safe's first and second affirmative defenses (ECF No. 9).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
IT IS SO ORDERED.