Civil Action No. 3:02-CV-2501-G.
March 16, 2005
MEMORANDUM OPINION AND ORDER
Before the court is the motion of the defendant UNICARE Life Health Insurance Company ("UNICARE") to dismiss this case, pursuant to FED. R. CIV. P. 41(b), for want of prosecution. For the reasons stated below, UNICARE's motion is granted.
In this case, the plaintiff V. John Gonino, D.O. ("Gonino") claims that he was wrongfully terminated as a provider in UNICARE's physician network. He asserts claims under Texas law for breach of contract, breach of the duty of good faith and fair dealing, and tortious interference. Plaintiff's Original Petition ("Petition") ¶¶ 13-15, attached to Notice of Removal as Exhibit 2. Gonino maintains that he is a third-party beneficiary of a Participating Physician Group Agreement (the "Physician Agreement") entered into between UNICARE and the physician group. The Physician Agreement mandates that any dispute arising under it must be arbitrated. Defendant's Motion to Dismiss for Want of Prosecution and Brief in Support ("Motion to Dismiss") ¶ I. On October 14, 2002, Gonino filed suit in a Dallas County district court. See generally Petition. UNICARE removed the case to this court on November 15, 2002. See generally Notice of Removal. Then, on July 7, 2003, UNICARE filed an unopposed motion to dismiss and/or stay the proceedings pending arbitration. See generally Unopposed Motion to Dismiss and/or Stay Proceeding Pending Arbitration. The court granted the motion on July 8, 2003 and stayed the case pending arbitration. See Order (July 8, 2003). Eighteen months passed during which Gonino neither initiated arbitration nor filed a demand for arbitration. See Defendant's Reply Brief ("UNICARE's Reply") ¶ III. UNICARE then filed this motion.
A district court has authority to dismiss a case for want of prosecution or failure to comply with a court order. FED. R. CIV. P. 41(b); Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). This authority "flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Insurance Company, Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash Railroad Company, 370 U.S. 626 (1962)). Such a dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996). When considering whether to dismiss a case for lack of prosecution, a district court must weigh the court's need to manage its docket, the public interest in expeditious resolution of the litigation, the risk of prejudice to defendants from the delay, and the policy favoring disposition of cases on their merits. Morris v. Morgan Stanley Company, 942 F.2d 648, 651 (9th Cir. 1991); Citizens Utilities Company v. American Telephone Telegraph Company, 595 F.2d 1171, 1174 (9th Cir.), cert. denied, 444 U.S. 931 (1979). In close cases, a court also considers whether: (1) the plaintiff personally contributed to the delay; (2) the defendant was prejudiced as a result of the delay; and (3) the plaintiff intentionally caused the delay. Markwell v. County of Bexar, 878 F.2d 899, 902 (5th Cir. 1989); Callip v. Harris County Child Welfare Department, 757 F.2d 1513, 1519 (5th Cir. 1985).
Only an "unreasonable" delay will support a dismissal for lack of prosecution. Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985); Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1280 (9th Cir. 1980); 9 CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2370 at 357-64 (2d ed. 1995). A delay is unreasonable if there is a significant period of total inactivity by the plaintiff, the plaintiff fails to adhere to repeated warnings that a dismissal will result from continued failure to proceed, or the plaintiff fails to obey court rules and court orders. Ramsay v. Bailey, 531 F.2d 706, 708-09 (5th Cir. 1976), cert. denied, 429 U.S. 1107 (1977). A delay is also unreasonable if the defendant is actually prejudiced by the delay. Ash, 739 F.2d at 496; Citizens Utilities, 595 F.2d at 1174. The Fifth Circuit has held a delay to be unreasonable when the plaintiff did not file any pleadings within a twenty-two month period. Harrelson v. United States, 613 F.2d 114, 116 (5th Cir. 1980). Although an exact time period has not been established for determining when a delay is unreasonable, even a relatively brief period of delay is "sufficient to justify the district court's sending a litigant to the back of the line." Ash, 739 F.2d at 497.
The record in this case reveals that Gonino has neither initiated the arbitration proceeding nor filed a demand for arbitration with the American Arbitration Association ("AAA"). Gonino filed suit twenty-nine months ago, and this court ordered arbitration — staying the case, meanwhile, pending such arbitration — nineteen months ago. As the party seeking relief, Gonino had the burden to initiate arbitration proceedings. See In re Bruce Terminix Company, 988 S.W.2d 702, 705-06 (Tex. 1998) (holding that absent a contrary agreement, a party against whom a claim is asserted does not waive its right to arbitrate by failing to initiate arbitration of that claim). Gonino, however, has only recently bestirred himself to start the process leading to arbitration. Immediately before UNICARE filed the instant motion to dismiss, Gonino forwarded for UNICARE's review the draft of an AAA submission form. American Arbitration Association Submission to Dispute Resolution, attached to Motion to Dismiss as Exhibit B. Gonino has yet, however, to pay the arbitration fee or open a file with the AAA. See id.; Motion to Dismiss ¶ III; Letter from Roger A. Farahmand to Andrew Jubinsky, dated January 12, 2005, attached to Plaintiff's Response to Defendant's Motion to Dismiss for Want of Prosecution and Brief in Support ("Gonino's Response") as Exhibit B. Thus, it is evident that Gonino has not actually commenced arbitration, but has only started — after nineteen months — the process for doing so. Since this recent spate of activity was no doubt prompted by Gonino's knowledge that he was facing a motion to dismiss, his sudden (but belated) desire to arbitrate is not enough to save this suit from dismissal. See 9 FEDERAL PRACTICE AND PROCEDURE § 2370 at 355 ("Many reasons might justify the delay in question, but the fact that a plaintiff has been stirred into action by a threat of dismissal is no excuse.") (citing Alexander v. Pacific Maritime Association, 434 F.2d 281, 283-84 (9th Cir. 1970), cert. denied, 401 U.S. 1009 (1971)).
Significantly, Gonino has not offered a substantive excuse for the prolonged dormancy of this matter. He merely argues that UNICARE is partially responsible for the delay because it did not take steps to facilitate the arbitration process. Plaintiff's Reply Brief ¶ IV. In particular, Gonino urges that UNICARE's failure and refusal to comply with the Department of Health and Human Services Bureau of Health Professions in amending a defamatory statement resulted in delay because he was unable to properly assess future damages. Id. Gonino's argument is without merit. The burden to initiate arbitration proceedings was on Gonino, as the party seeking damages, and he has failed to meet this burden. Additionally, Gonino alleges that he was unable to prosecute his claims because UNICARE did not return his phone calls. Gonino's Response ¶ IV. Contrary to Gonino's assertions, however, UNICARE claims that it did return his phone calls. See Affidavit of Jonathan G. Erwin ¶ 3, attached to UNICARE's Reply as Exhibit A. UNICARE's counsel contacted Gonino on two different occasions and was informed each time that Gonino's counsel was out of the office. Id. ¶¶ 3-4. Finally, when a paralegal returned UNICARE's phone calls, UNICARE informed Gonino that it would be pursuing this motion to dismiss due to Gonino's failure to initiate arbitration. Id. ¶ 5. Despite Gonino's recent activity, he has still not attempted to explain his nineteen month delay. Rather than offering an explanation as to why he waited nineteen months to begin arbitration proceedings, Gonino only argues that he tried to initiate arbitration within the past few weeks but that UNICARE would not help. Dismissal under these circumstances is clearly justified.
Other factors also warrant dismissal for want of prosecution. Gonino's total inaction for a nineteen month period has undoubtedly prejudiced UNICARE. Although dismissal is not proper unless the delay is unreasonable (and the presence of actual prejudice is important in determining whether the delay is unreasonable), Ash, 739 F.2d at 496, this case involves events that allegedly occurred in 1999 and 2000. See Petition ¶¶ 5-7. Five or six years having elapsed since those events, each passing day increases UNICARE's difficulty in mounting an adequate defense, as witnesses become more difficult to locate and those who can be located lack sufficient memory to provide meaningful testimony.
When this case was stayed pending arbitration in July 2003, the court understood that the parties and their counsel would proceed with despatch to arbitrate their differences. Gonino and his counsel had the burden of diligently pursuing his claims if they wished to obtain an award of damages against UNICARE. Without arbitration proceedings underway, the case was — and currently remains — at a standstill.
The court concludes that Gonino's delay in prosecuting this action is unreasonable. This delay, when balanced against the court's pressing caseload, the public interest, and the prejudice caused to UNICARE by the delay, is "sufficient to justify . . . sending [Gonino] to the back of the line." Ash, 739 F.2d at 497.
III. CONCLUSIONFor the reasons discussed above, UNICARE's motion to dismiss is GRANTED. Gonino's complaint is dismissed without prejudice pursuant to FED. R. CIV. P. 41(b).