“If a plaintiff does not take advantage of the 25 opportunity to fix his complaint, a district court may convert the dismissal of the complaint 26 27 2 One important difference between dismissals under Rules 12(b)(6) and 41(b
How later courts described this case
- “If a plaintiff does not take advantage of the 25 opportunity to fix his complaint, a district court may convert the dismissal of the complaint 26 27 2 One important difference between dismissals under Rules 12(b)(6) and 41(b
- explaining Rule 12(b)(6) dismissals are reviewed 1 dismissal of the entire action.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 ROBERT B. SHIELDS, individually and Case No.: 23-CV-925 JLS (BLM)
on behalf of all others similarly situated,
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ORDER REGARDING PLAINTIFF’S
Plaintiff,
13 FAILURE TO FILE AN AMENDED
v. COMPLAINT
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DOLLAR TREE, INC.,
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Defendant.
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17 Plaintiff Robert B. Shields has repeatedly failed to meet deadlines in this case. First,
18 Plaintiff failed to serve Defendant Dollar Tree, Inc., within the ninety-day period required
19 by Federal Rule of Civil Procedure 4(m). See generally Docket. Plaintiff did not request
20 an extension until this Court ordered him to explain his noncompliance. See ECF Nos. 3, 4.
21 The Court granted that request, see ECF No. 5, and the case eventually proceeded when
22 Defendant filed a Motion to Dismiss (“MTD,” ECF No. 7) pursuant to Federal Rule of
23 Civil Procedure 12(b)(6).
24 The Motion to Dismiss was set for a hearing on November 8, 2023, MTD at 1,
25 meaning Plaintiff’s opposition was due by October 25 pursuant to Civil Local Rule 7.1(e).
26 But October 25 came and went without a word from Plaintiff. Indeed, Plaintiff did not
27 respond even after the Court noted—when taking the matter under submission—that the
28 Motion remained unopposed. See ECF No. 11. Consequently, on November 16, the Court
1 granted the unopposed Motion to Dismiss pursuant to Local Rule 7.1(f)(3)(c) and gave
2 Plaintiff two weeks to file an amended complaint. See ECF No. 12.
3 On November 27, Plaintiff delayed this case further by asking the Court to extend
4 his deadline to amend by sixty days. See ECF No. 13. Plaintiff—who is represented by
5 counsel—gave the excuse that he “didn’t realize that [he] should respond to Defendant’s
6 [Motion to Dismiss] within 14 days.” Id. at 1. But as the Court noted, “a lawyer’s failure
7 to read an applicable rule is one of the least compelling excuses that can be offered.”
8 Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir. 2004). Plaintiff also claimed he needed an
9 extension to seek new counsel. See ECF No. 13 at 2. The Court viewed that argument
10 skeptically as Plaintiff could have raised it much earlier.1 See ECF No. 14 (the “Order”)
11 at 3–4. Nevertheless, the Court granted Plaintiff the bulk of the extension he sought, giving
12 him until January 4, 2024, to file his amended complaint. See id.
13 Plaintiff has now missed his deadline to amend once again, leaving the Court
14 inclined to dismiss this case with prejudice. A court may dismiss an action for failing to
15 comply with a court order if a plaintiff fails to amend his complaint after said complaint is
16 dismissed with leave to amend. See Yourish v. California Amplifier, 191 F.3d 983, 986
17 (9th Cir. 1999). Under Federal Rule of Civil Procedure 41(b), such a dismissal “operates
18 as an adjudication on the merits” unless the Court specifies otherwise. Before dismissing
19 an action on those grounds, the Court must consider five factors: “(1) the public’s interest
20 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk
21 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their
22 merits; and (5) the availability of less drastic alternatives.” Yourish, 191 F.3d at 990
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25 1 Plaintiff had previously communicated with Defendant about continuing the Motion to Dismiss hearing,
citing Plaintiff’s wish to employ new counsel. See ECF No. 13 at 2. But that exchange occurred on
26 November 1, which was (1) the same day the Court vacated the hearing and pointed out that Plaintiff had
failed to oppose the Motion to Dismiss, see ECF No. 11; (2) fifteen days before the Court granted the
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Motion to Dismiss, see ECF No. 12; and (3) a full twenty-six days before Plaintiff filed the extension
28 request, see Order. Plaintiff made no attempt to explain why he waited nearly a month to move for an
1 (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). The Court
2 suspects the factors weigh heavily in favor of dismissal here.
3 However, a district court cannot dismiss an action for failure to file an amended
4 complaint as a Rule 41(b) sanction unless the court previously “mandate[d] the filing of an
5 amended complaint” and “indicate[d] that failure to do so would result in
6 dismissal . . . pursuant to Rule 41(b).” Applied Underwriters, Inc. v. Lichtenegger,
7 913 F.3d 884, 892 (9th Cir. 2019). In its prior Order, the Court explicitly cautioned
8 Plaintiff that, “should he fail to file an amended pleading” by January 4, “the Court [would]
9 enter a final order dismissing this civil action based on Plaintiff’s failure to prosecute in
10 compliance with a court order requiring amendment.” Order at 4 (citing Lira v. Herrera,
11 427 F.3d 1164, 1169 (9th Cir. 2005)). The Court acknowledges, though, that its warning
12 neither named Rule 41(b) nor stated that a dismissal could be with prejudice. Further, the
13 Court wrote that Plaintiff “MAY FILE” an amended complaint, which could be read to
14 allow—but not require—Plaintiff to amend his pleading. See Applied Underwriters,
15 913 F.3d at 891 (reversing dismissal in part due to “the court’s failure to cite Rule 41(b)”
16 and “the permissive wording of its orders” (quoting Brown v. Rawson-Neal Psychiatric
17 Hosp., 840 F.3d 1146, 1150 (9th Cir. 2016) (Graber, J., dissenting))).
18 Accordingly, while Plaintiff has tested the outer limits of this Court’s patience, the
19 Court will provide Plaintiff with a final opportunity to prosecute his case. Within
20 seven (7) days of the date of this Order, Plaintiff either (1) SHALL FILE an amended
21 complaint, or (2) SHALL INDICATE to the Court that he will not do so. If Plaintiff
22 chooses the second option, the Court will convert the dismissal of Plaintiff’s Complaint
23 into a dismissal of the entire action under Federal Rule of Civil Procedure 12(b)(6), not
24 41(b).2 See Lira, 427 F.3d. at 1169 (“If a plaintiff does not take advantage of the
25 opportunity to fix his complaint, a district court may convert the dismissal of the complaint
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27 2 One important difference between dismissals under Rules 12(b)(6) and 41(b) is the standard of review
28 on appeal. See Applied Underwriters, 913 F.3d at 890 (explaining Rule 12(b)(6) dismissals are reviewed
1 dismissal of the entire action.”). Failure to select either of the above options will
2 ||result in the dismissal of this action pursuant to Rule 41(b). See id.; Applied
3 || Underwriters, 913 F.3d at 891-92. The Court cautions Plaintiff that such a dismissal may
4 ||be with prejudice. See id.; Yourish, 191 F.3d at 989-990; Fed. R. Civ. P. 41(b).
5 IT IS SO ORDERED.
6 Dated: January 16, 2024 tt
7 pen Janis L. Sammartino
3 United States District Judge
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