# Shields v. Dollar Tree, Inc. > District Court, S.D. California · January 16, 2024 URL: https://www.frixlaw.com/law-library/cases/10088956 ## Case - **Court:** District Court, S.D. California - **Decided:** January 16, 2024 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10088956 ## How later opinions describe it (automated extraction) - explaining Rule 12(b)(6) dismissals are reviewed 1 dismissal of the entire action.” ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT B. SHIELDS, individually and Case No.: 23-CV-925 JLS (BLM) on behalf of all others similarly situated, 12 ORDER REGARDING PLAINTIFF’S Plaintiff, 13 FAILURE TO FILE AN AMENDED v. COMPLAINT 14 DOLLAR TREE, INC., 15 Defendant. 16 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 23 24 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 27 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 26 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 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10088956. Public record. Not legal advice.