Maria Carbajal v. Diamond Resorts Hawaii Collection Development, LLC
1:17-cv-00272
D. Haw.Nov 1, 2017Background
- Plaintiff Maria Carbajal filed this action in January 2017; Diamond Resorts Hawaii Collection Development, LLC ("Diamond Resorts") answered and filed a counterclaim for breach of a promissory note.
- Local Rule required association of local counsel for Plaintiff; no local counsel entered an appearance and Plaintiff’s mainland counsel did not file pro hac vice and reported Plaintiff had ceased communications.
- The court issued an Order to Show Cause for failure to prosecute and to comply with Local Rules; Plaintiff did not respond or appear at the November 1, 2017 hearing.
- Defendant appeared at the hearing; Plaintiff’s absence persisted despite the court’s warning.
- The magistrate judge recommended dismissal of Plaintiff’s complaint with prejudice under Fed. R. Civ. P. 41(b) and entry of default against Plaintiff on Diamond Resorts’ counterclaim under Fed. R. Civ. P. 55(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether case should be dismissed for failure to prosecute and comply with court orders | Carbajal did not appear or present argument to oppose dismissal. | Case should be dismissed for delay, failure to associate local counsel, and interference with docket management. | Dismissal with prejudice under Rule 41(b) appropriate (four of five Pagtalunan factors favor dismissal). |
| Whether default should be entered on Diamond Resorts’ counterclaim | Carbajal previously answered the counterclaim but failed to continue defending the action or appear at the OSC hearing. | Default appropriate because Carbajal failed to defend after counterclaim was filed. | Clerk should enter default against Carbajal on the counterclaim under Rule 55(a). |
Key Cases Cited
- Link v. Wabash R.R. Co., 370 U.S. 626 (U.S. 1962) (courts may dismiss for failure to prosecute to prevent undue delays and manage dockets)
- Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002) (five-factor test for dismissal for failure to prosecute)
- Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (affirming dismissal for failure to comply with court orders)
- Malone v. United States Postal Serv., 833 F.2d 128 (9th Cir. 1987) (discussing prejudice to defendant from plaintiff delay)