Opinion
No. CV-19-04733-PHX-DWL
05-28-2020
Antonio Hernandez, Plaintiff, v. PGA Holdings LLC, et al., Defendants.
ORDER
On July 16, 2019, Antonio Hernandez filed a collective action complaint against Defendants for failure to pay overtime in violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"). (Doc. 1.) The parties' joint case management report, filed on September 20, 2019, stated that "Zachariah Owen is currently the only Opt-In Plaintiff." (Doc. 28 at 2.) The Court has no notice of any other opt-in plaintiffs.
A scheduling order issued on September 24, 2019 (Doc. 30), and the parties exchanged Mandatory Initial Discovery Program responses within the next few days (Docs. 31, 32).
The docket reflects no activity between September 2019 and May 13, 2020, when Opt-In Plaintiff Zachariah Owen and Defendants filed a stipulation to dismiss Mr. Owen with prejudice (Doc. 33), and Plaintiff Antonio Hernandez's counsel, Clifford P. Bendau, II and Christopher J. Bendau of Bendau & Bendau PLLC ("Plaintiff's Counsel") filed a motion to withdraw as counsel of record without client consent (Doc. 34). Plaintiff's counsel avers that "withdrawal is necessary in light of Plaintiff's unwillingness and/or inability to effectively communicate with his own counsel in connection with this action," specifically noting "Plaintiff's failure to cooperate with respect to providing responses to counsel's requests for information and documentation pertaining to his case, responses to settlement discussions, and general failure to communicate with his counsel, including but not limited to, responding to emails and telephone calls timely or otherwise." (Doc. 34 at 2-3.)
The stipulation to dismiss Opt-In Plaintiff Owen will be granted. As such, Hernandez will be the sole plaintiff in this action, and he is apparently not participating. Without Hernandez's participation, this action will not be permitted to linger on the docket. "It is within the inherent power of the court to sua sponte dismiss a case for lack of prosecution." Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). "When considering whether to dismiss a case for lack of prosecution, the district court must weigh the court's need to manage its docket, the public interest in expeditious resolution of litigation, and the risk of prejudice to the defendants against the policy favoring disposition of cases on their merits, and the availability of less drastic sanctions." Id. "Only 'unreasonable' delay will support a dismissal for lack of prosecution." Id. The Ninth Circuit has affirmed dismissal without prejudice for a delay as short as four weeks, noting that "[a] relatively brief period of delay is sufficient to justify the district court's sending a litigant to the back of the line." Id. at 497.
Dismissal of this action would affect only Hernandez, as other "putative plaintiffs remain free to vindicate their rights in their own suits." Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 77 (2013).
The Court will order Plaintiff to show cause why this case should not be dismissed without prejudice for failure to prosecute. Plaintiff must file a memorandum, not to exceed five pages, by June 17, 2020. The Court is interested in knowing (1) the reason why Plaintiff has failed to communicate with his counsel, (2) the prejudice, if any, to Plaintiff if this case were dismissed without prejudice—particularly whether any statute of limitations would bar the case from being filed anew, and (3) Plaintiff's suggestions as to how the case could proceed expeditiously from this point forward, if the Court were to determine that dismissal is not an appropriate sanction at this time.
As for Plaintiff's Counsel's motion to withdraw as counsel, Ninth Circuit law suggests a "justifiable cause" standard applies when, as here, the client does not affirmatively consent to the withdrawal request. Lovvorn v. Johnston, 118 F.2d 704, 706 (9th Cir. 1941) ("An attorney may not, in the absence of the client's consent, withdraw from a case without justifiable cause; and then only after proper notice to his client, and on leave of the court."). "Justifiable cause" is not a terribly demanding standard, and the professional considerations listed in ER 1.16 will often satisfy it, so long as other factors don't outweigh those considerations. Gagan v. Monroe, 2013 WL 1339935, *4 (D. Ariz. 2013) ("Factors that a district court should consider when ruling upon a motion to withdraw as counsel include: (1) the reasons why withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the administration of justice; and (4) the degree to which withdrawal will delay the resolution of the case.").
Plaintiff has failed to respond to his counsel's attempts to communicate, and he has failed to respond to their motion to withdraw as counsel. Any prejudice to him is of his own making. Furthermore, withdrawal will not harm the administration of justice or greatly delay resolution of this case. If Plaintiff fails to respond to the order to show cause, this action will be dismissed, and if Plaintiff responds with satisfactory reasons for allowing the case to proceed, a very short timeframe will be established in which Plaintiff will be required to engage new counsel or proceed pro se individually. Justifiable cause supports Plaintiff's Counsel's withdrawal request, which will be granted.
Plaintiff may not proceed pro se on behalf of others similarly situated. Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (discussing "the general rule prohibiting pro se plaintiffs from pursuing claims on behalf of others in a representative capacity"); Koch v. CHS Inc., 2012 WL 6093891, *2 (D. Idaho 2012) (general rule "holds true for pro se plaintiffs seeking to bring collective action suits under the F LSA"). --------
Accordingly,
IT IS ORDERED that stipulation to dismiss Opt-In Plaintiff Owen (Doc. 33) is granted.
IT IS FURTHER ORDERED that Plaintiff's Counsel's motion to withdraw as counsel of record (Doc. 34) is granted. Clifford P. Bendau, II and Christopher J. Bendau of Bendau & Bendau PLLC are withdrawn as counsel of record for Plaintiff.
IT IS FURTHER ORDERED that the Clerk of Court shall update Plaintiff's contact information as follows:
Antonio Hernandez
6112 N. 67th Ave., Apt. 217
Glendale, AZ 85391
(623) 512-8404
IT IS FURTHER ORDERED that Plaintiff shall file a memorandum by June 17, 2020, not to exceed five pages, showing cause why this case should not be dismissed for failure to prosecute.
IT IS FURTHER ORDERED that if Plaintiff fails to file a memorandum showing cause why this case should not be dismissed by June 17, 2020, the Clerk of Court shall dismiss this action without prejudice.
Dated this 28th day of May, 2020.
/s/_________
Dominic W. Lanza
United States District Judge