James C. Mahan, U.S. District Judge.
Presently before the court is the matter of Cohn v. Ritz Transportation, Inc., et al., case number 2:11-cv-01832-JCM-NJK.
Plaintiff Frank Cohn initiated this lawsuit in the Eighth Judicial District Court in Clark County, Nevada on October 26, 2011. (See doc. # 161). Cohn claimed that defendants did not pay him and other “similarly situated persons, ” overtime wages in violation of the Fair Labor Standards Act, 29 U.S.C. §§ 206-207 (“FLSA”), the Nevada Revised Statutes (“NRS”) and common law claims. (Doc. # 1, exh. A). In addition, Cohn sought relief on behalf of himself and a collective of other “similarly situated persons” pursuant to 29 U.S.C. § 216. (Id. at ¶ 20).
Defendants removed the case to this court on November 15, 2011. (Doc. # 1). Plaintiffs Cohn and other similarly situated persons filed an amended complaint on April 19, 2012. (Doc. # 43). The amended complaint alleged claims for: (1) unpaid overtime under the FLSA; (2) unpaid overtime under NRS § 608.018; (3) waiting-time penalties under NRS §§ 608.020, .030, and .040; (4) breach of contract as third party contract beneficiaries; (5) wrongful interference with prospective economic advantage; (6) conversion; and (7) retaliation under the FLSA. (Doc. # 1). Plaintiffs Cohn and other similarly situated persons voluntarily dismissed his fourth, fifth, and sixth causes of action on January 10, 2014. (Doc. # 121).
At some point the parties reached a settlement agreement. On November 24, 2014, the parties submitted a proposed order requesting the court’s approval of their confidential settlement agreement and release of all claims. (Doc. # 161). The parties’ submission noted that four plaintiffs-David Daniels, William Simmons, Shawn Thompson, and Gary Chavez-were non-participating plaintiffs as they did not “opt in” to the settlement agreement. Counsel representing all of the individuals prosecuting the instant action had been unable to contact the non-participating plaintiffs regarding settlement of the lawsuit. Accordingly, because these four individuals had not participated in the settlement negotiations and agreements, they were not subject to the settlement agreement or the proposed order regarding stipulation of dismissal.
Counsel representing all of the prosecuting individuals moved to withdraw as counsel for the four non-participating plaintiffs (“plaintiffs”). The parties noted that defendants anticipated moving to dismiss these non-participating plaintiffs for their failure to participate and prosecute their claims in the lawsuit. (Doc. # 161).
On December 1, 2014, the magistrate judge held a hearing on counsel’s motion to withdraw as counsel for plaintiffs David Daniels, William Simmons, Shawn Thompson, and Gary Chavez. (See docs. ## 159, 163). The court granted the motion to withdraw and ordered that either non-participating plaintiffs’ new counsel must enter an appearance, or non-participating plaintiffs must file a notice of intent to proceed pro se, no later than January 5, 2015. (Doc. # 163). None of the non-participating plaintiffs filed any notices of appearance or notices of intent to proceed pro se.
On February 19, 2015, the magistrate judge ordered plaintiffs David Daniels, William Simmons, Shawn Thompson, and Gary Chavez to show cause in writing by March 5, 2015, why they should not be sanctioned pursuant to Federal Rule of Civil Procedure 16(f) and Local Rule IA 4-1. (Doc. # 166). Each failed to respond to the order.
On March 10, 2015, the magistrate judge imposed sanctions on plaintiffs David Daniels, William Simmons, Shawn Thompson, and Gary Chavez in the amount of $50 each, pursuant to Federal Rule of Civil Procedure 16(f) and Local Rule IA 4-1. (Doc. # 169). To this date, plaintiffs have been unresponsive to the magistrate judge’s order imposing sanctions.
The court now considers whether to dismiss the remaining claims by plaintiffs David Daniels, William Simmons, Shawn Thompson, and Gary Chavez, based on their failure to respond to court orders.
Dismissal for failure to obey a court order is a harsh penalty and should be imposed only in extreme circumstances. See Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987). Courts weigh the following five factors when determining whether to dismiss a case for failing to comply with a court order: “(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 the [opposing party]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” In re Phynylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (internal citations and quotations omitted).
“These factors are not a series of conditions precedent before the judge can do anything, but a way for the district judge to think about what to do.” Id. (citing Valley Eng'rs v. Elec. Eng'g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). Although preferred, it is not required that the district court make explicit findings to show that it has considered these factors. Id. A dismissal sanction will be overturned only if the reviewing court is left with “a definite and firm ...