Maria De Jesus Cruz RAMOS v. COSTCO WHOLESALE CORPORATION et al Case No. CV 22-03579-MWF(AFMx) United States District Court, C.D. California Filed December 20, 2023 Counsel Ilan N. Rosen Janfaza, Law Offices of Ilan N. Rosen Janfaza APC, Beverly Hills, CA, for Maria De Jesus Cruz Ramos. Tracy L. Breuer, Deborah S. Tropp, McNeil Tropp and Braun LLP, Newport Beach, CA, for Costco Wholesale Corporation. Fitzgerald, Michael W., United States District Judge Proceedings (In Chambers): ORDER DENYING DEFENDANT'S MOTION TO DISMISS CASE [42] *1 Before the Court is a Motion to Dismiss Case (the “Motion”) filed by Defendant Costco Wholesale Corporation on October 31, 2023. (Docket No. 42). Plaintiff Maria De Jesus Cruz Ramos filed an Opposition on November 22, 2023. (Docket No. 45). Defendant filed a Reply on November 27, 2023. (Docket No. 46). The Court has read and considered the Motion and held a hearing on December 4, 2023. The Motion is DENIED without prejudice. After weighing the Eisen factors, dismissal does not seem appropriate here. However, this Court will impose further sanctions, including dismissal, if the action is not properly prosecuted going forward. I. BACKGROUND Plaintiff filed this action on April 1, 2022, in Los Angeles County Superior Court. (Complaint, Docket No. 1-2). The action was removed on May 25, 2022. (Docket No. 1). On July 20, 2022, the Court issued an Order Re Jury Trial setting forth the deadlines in this matter. (Docket No. 12). On February 6, 2023, Defendant filed a motion for sanctions pursuant to the Federal Rule of Civil Procedure 37. (Docket No. 18). On February 28, 2023, Plaintiff filed an opposition and a request to “reset” the case schedule dates. (Docket No. 22). On March 7, 2023, Defendant filed a reply in support of its motion. (Docket No. 25). On March 28, 2023, a hearing was held before Magistrate Judge Alexander F. MacKinnon. (Docket No. 31). After the hearing both parties filed supplemental briefs. (Docket Nos. 32, 33). Defendant's motion was based on the facts that (1) Plaintiff did not serve initial disclosures or expert disclosures, (2) did not provide responses to interrogatories, requests for production or requests for admissions, and (3) did not appear for her deposition. The initial disclosures were due in August 2022, and expert disclosures were due on February 3, 2023. (Docket No. 12). Plaintiff did not provide those disclosures – despite a reminder email from Defendant's counsel on August 30, 2022 regarding the initial disclosures. Defendant's requests for admission, requests for production, and interrogatories were served on Plaintiff on July 22, 2022. No responses were provided by Plaintiff. On January 23, 2023 — after disqualification of Plaintiff's original counsel — Defendant's counsel sent a letter directly to Plaintiff advising her that discovery had previously been served and that no responses had been provided. (Docket No. 18-3 at 34). In addition, Plaintiff was advised that her deposition had been noticed for February 16, 2023. (Id.). Plaintiff was asked to contact Defendant's counsel to discuss this discovery. (Id.). Plaintiff did not contact Defendant's counsel and did not appear for her deposition. The fact discovery cutoff was February 24, 2023. (Docket No. 12 at 2). The Report and Recommendation of the Magistrate Judge was accepted and adopted. (Docket No. 36). Defendant's motion for sanctions was granted in part and denied in part with Plaintiff being required to reimburse Defendant in the amount of $7,500 for attorneys' fees and other expenses incurred regarding the motion. Additionally, the Court ordered Plaintiff to (1) respond to the pending interrogatories, requests for production and requests for admission; (2) produce all responsive documents; and (3) provide her initial disclosures and expert disclosures within 21 days of the date of the order, May 23, 2023. Therefore, Plaintiff's initial disclosures and expert disclosures were due to be served no later than June 13, 2023. The Court also extended the case deadlines to permit the discovery responses, document production, and disclosures by Plaintiff to take place and to permit sufficient time for Defendant to take Plaintiff's deposition and to conduct follow-up investigation and discovery. *2 On June 6, 2023, the Court issued an Amended Order Re Jury Trial setting forth the new deadlines in this matter. (Docket No. 41). Defendant brought this motion because Plaintiff has failed to provide initial disclosures and expert disclosures pursuant to the Order dated May 23, 2023. (Motion at 3). Plaintiff's initial disclosures were served on November 21. 2023. II. DISCUSSION It is well-established that a district court has authority to dismiss a plaintiff's action due to her failure to prosecute and/or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 629–30 (1962) (noting that district court's authority to dismiss for lack of prosecution is necessary to prevent undue delays in the disposition of pending cases and avoid congestion in district court calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (stating that district court may dismiss action for failure to comply with any order of the court). Before ordering dismissal, the Court must consider five factors: (1) the public's interest in expeditious resolution of litigation; (2) the Court's need to manage its docket; (3) the risk of prejudice to Defendant; (4) the public policy favoring the disposition of cases on their merits; and (5) the availability of less drastic sanctions. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to prosecute); Ferdik, 963 F.2d at 1260–61 (failure to comply with court orders). Taking all of these factors into account, dismissal for lack of prosecution is not warranted. While the initial disclosures were over five months late, Plaintiff is now participating in the litigation, which favors the disposition of the case on the merits. Additionally, the previous sanctions were imposed upon Plaintiff's original counsel, which indicates that less drastic sanctions would be effective if needed. At the hearing, Plaintiff's counsel appeared late despite the Deputy Clerk's clear communication of the start time. The Court is willing to accept counsel's apology and determines that the late appearance does not change the Court's evaluation of the above factors. Accordingly, the Motion is DENIED without prejudice. Any future delay to the case deadlines, (see Docket No. 41), caused by a lack of prosecution will cause this action to be dismissed. Additionally, while the Court does not amend the case deadlines, it recognizes that the deadlines might need to be altered to permit sufficient time for discovery. IT IS SO ORDERED.