Whitaker v. Luca Cucina Italiana, Inc.

Background

Brian Whitaker filed an Americans with Disabilities Act access case on April 28, 2021. Luca Cucina Italiana, Inc. answered on June 30, 2021. The court’s General Order 56 required the parties to conduct a joint site inspection within 60 days after service of the complaint, hold a settlement meeting within 35 days after that inspection, and then file either a settlement notice or a notice requesting mediation and certifying counsel within the specified deadline if the case did not settle.

The court determined that the parties apparently had not followed those procedures. On January 4, 2022, it ordered them to file the required notice within 14 days. The parties did not respond. On February 14, 2022, the court ordered Whitaker to show why the case should not be dismissed for failure to prosecute, meaning failure to pursue the case diligently.

Parties’ Positions and Court’s Findings

Whitaker’s response said that the defendant had not responded to emails in July and August 2021 and that defense counsel had said the client was out of the country until September 2021. The defendant asked the court to dismiss the case and submitted additional communications after the court requested supporting evidence.

The defendant’s supplemental filing showed, in the court’s view, that defense counsel had repeatedly arranged telephone meetings that Whitaker’s counsel did not attend. It also showed that, in response to a request to schedule the site inspection, defense counsel had offered to extend the deadline to September 22, 2021 because the client was out of the country until September 13. Whitaker did not respond to that offer and did not contact the defendant again until after the court issued the order to show cause. The court also found that Whitaker’s response omitted significant information about his own lack of diligence and created a misleading impression about the defendant’s conduct.

Legal Standard

Federal Rule of Civil Procedure 41(b) permits dismissal for failure to prosecute or failure to comply with a court order. The court considered five factors: the public’s interest in resolving cases promptly, the court’s need to manage its docket, the risk of prejudice to the defendant, the public policy favoring decisions on the merits, and whether less severe sanctions were available.

Ruling

The court held that four of the five factors supported dismissal. Whitaker’s failures delayed the case and consumed court resources, and the delay caused by his failure to prosecute weighed in favor of dismissal. The court had already warned him that failing to respond could result in dismissal, so it found that the warning satisfied the requirement to consider less severe sanctions. The factor favoring decisions on the merits weighed against dismissal.

Judge Jacqueline Scott Corley therefore dismissed the action in its entirety with prejudice for failure to prosecute under Rule 41(b).