Vargas v. Zumiez, Inc.

Background

Joel Vargas, proceeding without a lawyer, alleged trademark infringement, unfair competition, and unjust enrichment involving the STONEY trademark. He alleged that Zumiez, Inc., Urban Outfitters, Inc., and Austin Post used the mark on clothing. Vargas stated that he had operated a clothing business under the name STONEY DESSERTS since 2015 and a retail clothing store under the same mark since 2017.

Vargas served Zumiez and Urban Outfitters, and they answered. The opinion states that Vargas attempted to serve Post on August 20, 2019, but Post argued that service was not proper. The court had also arranged for lawyers to represent Vargas on a limited, unpaid basis during discovery and settlement discussions. Those lawyers later sought permission to withdraw. Vargas did not respond to the withdrawal motion, did not attend a November 5, 2019 status conference, and had not communicated with the court or opposing counsel for more than eight months.

Post's Motion for Failure to Serve

Post moved to dismiss under Federal Rule of Civil Procedure 12(b)(5), which permits dismissal for insufficient service of process. The court explained that an individual may be served by delivering the summons and complaint to an agent authorized by appointment or law to accept service. Vargas submitted an affidavit stating that he had served two people, ERESIDENTAGENT and Sapphire McFarland. Post submitted a declaration stating that neither person was authorized to accept service for him.

The court found that Vargas had not shown that Post was properly served and noted that the attempted service occurred months after the service deadline. It therefore granted Post's motion to dismiss for failure to serve process without prejudice. The court did not reach Post's separate argument that the case should be dismissed for failure to prosecute.

Failure to Prosecute

Zumiez and Urban Outfitters moved to dismiss for failure to prosecute under Rule 41(b), which allows dismissal when a plaintiff does not pursue a case or comply with the rules or a court order. The court considered the duration of Vargas's noncompliance, whether he had notice that dismissal could result, likely prejudice to the defendants, the competing interests of court administration and allowing Vargas to be heard, and whether a less severe sanction would work.

The court found that all five considerations supported dismissal. Vargas had not appeared in the case for more than eight months. He had been warned that failing to attend the status conference could lead to dismissal. The court found that his prolonged lack of communication supported a presumption of prejudice to the defendants. It also found that dismissal would allow the court to focus its resources elsewhere and was appropriate given Vargas's continued absence and failure to follow court orders.

The court nevertheless dismissed without prejudice, emphasizing Vargas's status as a self-represented party and the limited purpose and short duration of the pro bono representation. Dismissal without prejudice allowed Vargas to resume the litigation if circumstances permitted.

Disposition

The court stated that the defendants' motions were granted in part and that the complaint was dismissed without prejudice. More specifically, Post's motion to dismiss for failure to serve process was granted, and Zumiez and Urban Outfitters' joint motion to dismiss for failure to prosecute was granted to the extent that the complaint was dismissed without prejudice. The Clerk was directed to terminate the motions and close the case.