Gomez-Ortega v. Deja Vu - San Francisco LLC

Background

Elaine P. Gomez-Ortega brought a labor dispute as a proposed class action under Federal Rule of Civil Procedure 23. The court had previously stayed the case. It also preliminarily approved a class-action settlement in two related cases that would resolve the proposed class claims in this case. The hearing on final approval was scheduled for November 17, 2022.

On June 30, 2022, Gomez-Ortega’s lawyers moved to withdraw, citing a complete breakdown in the attorney-client relationship and several months without communication with their client. The motion was unopposed. At an August 4 hearing, Gomez-Ortega did not appear even though she had been served with the motion and ordered to appear by video. The court granted the withdrawal motion and ordered her to appear at a September 29 status conference either without a lawyer or through new counsel. The court warned that failure to appear could result in monetary sanctions or dismissal of the case.

Gomez-Ortega did not appear at the September 29 conference. The court scheduled another conference for October 13 and directed her former lawyers to serve notice. Neither Gomez-Ortega nor a lawyer appearing for her attended the October 13 conference. Defense counsel also told the court that neither Gomez-Ortega nor new counsel had contacted defense counsel about the case.

Legal standard

Federal Rule of Civil Procedure 41(b) allows a court to dismiss an action when the plaintiff fails to prosecute the case or comply with court orders. The court explained that plaintiffs must pursue their claims with reasonable diligence. It also discussed the Ninth Circuit’s five-factor test for a case-ending sanction: the public’s interest in quickly resolving cases, the court’s need to manage its docket, the risk of prejudice to the party seeking sanctions, the public policy favoring decisions on the merits, and whether less severe sanctions are available.

The court noted that dismissal is a severe sanction and generally requires willfulness, bad faith, or fault. Before imposing dismissal, a court ordinarily must warn the plaintiff and consider or try less severe sanctions.

Order

Judge Laurel Beeler ordered Gomez-Ortega to appear by video on November 17, 2022, at 9:30 a.m., either without a lawyer or through new counsel. She must show cause—meaning explain why—the action should not be dismissed for failing to prosecute and comply with the court’s orders.

The court did not dismiss the action in this order. It warned that if Gomez-Ortega did not appear, she could face monetary sanctions and ultimately dismissal of her claims for failure to prosecute and comply with court orders, along with entry of judgment in favor of the defendant.