Mohebbi v. Concentric Methods ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________
)
ZAHRA MOHEBBI, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-0704 (JDB)
)
CONCENTRIC METHODS, )
)
Defendant. )
______________________________________ )
MEMORANDUM OPINION
This matter is before the Court on Defendant’s Motion to Dismiss Pursuant to Fed. R.
Civ. P. 41(b) [ECF No. 18]. For well over a year, the Court repeatedly has continued this case in
order to accommodate plaintiff. Nonetheless, she has failed to prosecute this case or comply
with the Court’s orders. For the reasons discussed below, defendant’s motion will be granted.
Plaintiff, who is proceeding pro se, brought this action against her former employer under
Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, see generally
Compl. [ECF No. 1], as well as the Family Medical Leave Act and the District of Columbia
Human Rights Act, see generally Am. Compl. [ECF No. 11]. Defendant filed its answer to the
initial complaint [ECF No. 6] on June 18, 2014, and to the amended complaint [ECF No. 13] on
September 9, 2014.
The June 18, 2014 Scheduling Order [ECF No. 7] set an initial scheduling conference for
July 18, 2014 at 9:15 a.m. By minute order on July 17, 2014, the Court reset the matter for
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August 1, 2014 and directed the parties to file their joint report pursuant to Local Civil Rule 16.3
by July 30, 2014. Based on the representations of defendant’s counsel regarding plaintiff’s
availability, the Court continued the matter four times. The Court’s September 8, 2014 minute
order directed the parties to file a joint report by October 3, 2014 in preparation for an initial
scheduling conference on October 10, 2014. Again based on counsel’s representations, on
October 10, 2014, the Court stayed all proceedings for 100 days and set a status hearing for
January 16, 2015 at 9:30 a.m. On January 15, 2015, the Court ordered that the stay remain in
effect and reset the status hearing for May 1, 2015. By minute order on April 30, 2015, the
Court continued the matter to June 30, 2015 at 9:30 a.m., advised plaintiff that no further
continuances would be granted absent extraordinary circumstances, and warned plaintiff that, if
she failed to appear, the Court would dismiss this action under Federal Rule of Civil Procedure
41 for failure to prosecute.
Plaintiff appeared at the June 30, 2015 status conference. On that same date, based on
the parties’ representations, the Court directed plaintiff to file her Second Amended Complaint
by July 31, 2015 [ECF No. 17]. Plaintiff failed to do so, and on September 8, 2015, defendant
filed its motion to dismiss [ECF No. 18]. On September 9, 2015, the Court issued an Order
[ECF No. 19] which set October 6, 2015 as the deadline for plaintiff’s opposition to defendant’s
motion. This order also advised plaintiff that, if she failed to file a timely response, the Court
would treat defendant’s motion as conceded and dismiss this action. To date, plaintiff neither
has filed an opposition to defendant’s motion nor has requested additional time to do so.
“If the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil
Procedure] or a court order, a defendant may move to dismiss the action or any claim against it.”
Fed. R. Civ. P. 41(b); see LCvR 83.23 (“A dismissal for failure to prosecute may be ordered by
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the Court upon motion by an adverse party, or upon the Court’s own motion.”). The Court also
may dismiss a case sua sponte because of a plaintiff’s failure to comply with court orders
designed to ensure orderly prosecution of the case. See Link v. Wabash R.R. Co., 370 U.S. 626,
630 (1962). “The court’s authority to dismiss a case for failure to prosecute or failure to follow
the court’s orders is not discarded simply because a plaintiff is proceeding pro se.” Allen v.
United States, 277 F.R.D. 221, 223 (D.D.C. 2011). Dismissal is a harsh result designed to
address “egregious conduct by dilatory plaintiffs,” and therefore ordinarily it is not warranted
where a party has committed only a single act of misconduct. Trakas v. Quality Brands, 759
F.2d 185, 188 (D.C. Cir. 1985); see Gardner v. United States, 211 F.3d 1306, 1308 (D.C. Cir.
2000) (providing that dismissal under Rule 41 is permissible only after lesser sanctions have
been tried without success). In determining whether a dismissal is warranted, the court considers
“the effect of a plaintiff’s dilatory or contumacious conduct on the court’s docket, whether the
plaintiff’s behavior has prejudiced the defendant, and whether deterrence is necessary to protect
the integrity of the judicial system.” Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 167 (D.C.
Cir. 1990) (citation omitted).
Not once has plaintiff filed a motion for a continuance of an initial scheduling conference
or status conference. Nor has plaintiff filed any motion, pleading, or notice of any kind since she
submitted her amended complaint in August 2014. This civil action commenced in April 2014,
and nearly nineteen months later, the case has not progressed even far enough for the Court to
issue a scheduling order. 1 The Court notified plaintiff well in advance of each court date and has
1
In contrast, however, defendant represents that plaintiff actively has been pursuing a substantially similar claim in
the Superior Court of the District of Columbia on judicial review of the finding of the District of Columbia Office of
Human Rights that there was no probable cause to believe that defendant discriminated against plaintiff on the bases
of her nationality and disability. See generally Mem. of P. & A. in Support of Def.’s Mot. to Dismiss Pursuant to
Fed. R. Civ. P. 41(b) at 5; see id., Ex. 1-2.
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advised plaintiff in person of the consequences of her failure to file an opposition to defendant’s
pending motion. Although defendant does not argue that it has been prejudiced, plaintiff’s
conduct certainly has inconvenienced defendant and caused it to expend resources unnecessarily.
The Court similarly has been inconvenienced. Lastly, the Court has made every effort to
accommodate plaintiff, yet plaintiff repeatedly has failed to comply with its orders. Dismissal
under Rule 41(b) therefore is appropriate. 2 See, e.g., Smith-Bey v. Cripe, 852 F.2d 592, 594
(D.C. Cir. 1988) (“A lengthy period of inactivity may also be enough to justify dismissal
under Rule 41(b).”); Watts v. Pension Benefit Guaranty Corp., No. 12-1542, 2013 WL 2558225,
at *1 (D.D.C. June 11, 2013) (dismissing action where “plaintiff has failed to appear in the case
either pro se or through counsel, though plaintiff is aware of the pending action and has been
warned twice by the Court that her failure to appear in the case or respond to the [defendant’s]
motion to dismiss would result in dismissal of her case”).
An Order is issued separately.
DATE: October 19, 2015 /s/
JOHN D. BATES
United States District Judge
2
In the alternative, defendant moves to dismiss for lack of subject matter jurisdiction. See Def.’s Mem. at 6. It
appears that the claims set forth in the amended complaint in this action and the claims before the District of
Columbia Office of Human Rights are similar but not identical, and the Court will deny defendant’s motion in part
without prejudice.
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