Free Order on Motion to Dismiss Case/Lack of Prosecution - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 vs. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Glenn Kelly, et al., Defendants, Rodney Allen Kelly, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 04-0103-PHX-SRB ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA NOT FOR PUBLICATION

JWB

Before the Court is Defendants' Motion to Dismiss for Lack of Prosecution (Doc. # 69) and Plaintiff's objection to Magistrate Judge Voss' November 9, 2006 Order (Doc. # 72). The Court will overrule Plaintiff's objection as untimely, grant Defendants' motion, and dismiss this action. I. Plaintiff's Objection to Magistrate Judge's November 9, 2006 Order On December 12, 2006, Plaintiff filed a "Notice of Appeal" of the Magistrate Judge's November 9, 2006 Order. That Order denied Plaintiff's motions: (1) for copies of certain case files; (2) for a continuance; and (3) for the appointment of counsel (Doc. # 68). Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, a party must serve and file objections to a magistrate judge's order within 10 days after being served with a copy of the order. Here, Plaintiff filed his objection over one month after the order was filed. Any objection a party fails to raise within the 10 day period is waived. Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996). As a result, Plaintiff's objection is untimely and
Document 75 Filed 01/25/2007 Page 1 of 5

Case 2:04-cv-00103-SRB-ECV

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

will be overruled.1 II. Defendants' Motion to Dismiss for Lack of Prosecution Federal Rule of Civil Procedure Rule 41(b) provides that a court may dismiss Plaintiff's action, or part thereof, for "failure ... to prosecute or to comply with these rules or any order of court." Unless otherwise specified, the dismissal acts as an adjudication on the merits. FED. R. CIV. P. Rule 41(b). Defendants contend that Plaintiff's failure to participate in the drafting and submission of the joint proposed pre-trial order, as required by this Court's February 7, 2006 Order, constitutes a failure to prosecute warranting the dismissal of this action. The Court agrees. District courts have inherent power to control their dockets and may impose sanctions, including dismissal, in the exercise of that discretion. Hamilton Copper & Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990); see also Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). The Ninth Circuit allows dismissal under Rule 41(b) only after the district court has weighed the following five factors: (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 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). Dismissal under Rule 41(b) will not be disturbed on appeal unless there is a "definite and firm conviction" that the district court committed clear error of judgment in weighing the relevant factors. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). Here, the first three Thompson factors weigh in favor of dismissal. Defendants, in their motion, contend that they attempted in good faith to jointly prepare the proposed pre-

The Court further notes that Plaintiff failed to specifically object to the November 9, 2006 Order. Plaintiff simply stated that he filed his "notice of appeal." However, Plaintiff's failure to specifically identify those parts of the Magistrate Judge's Order with which Plaintiff has disagreed is an alternative basis for overruling his objection. -2Document 75 Filed 01/25/2007 Page 2 of 5

1

Case 2:04-cv-00103-SRB-ECV

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

trial order with Plaintiff. Specifically, Defendants aver that they mailed a draft proposed pretrial order to Plaintiff on May 20, 2006. However, Defendants claim that Plaintiff never responded to their letter or the draft, and failed to participate in any way in the pretrial order's preparation. Plaintiff, in his response to the motion to dismiss, does not counter Defendants' statements. Rather, Plaintiff claims that because of his status as an incarcerated inmate and because a transfer to another facility resulted in the loss of his legal paperwork, he was unable to proceed with this case.2 Plaintiff's status as an incarcerated inmate, however, does not relieve him of his duty to prosecute his case. Plaintiff's failure to meaningfully participate in the preparation of the joint pretrial order clearly undermines the public's interest in expeditious resolution of litigation. The case cannot advance, let alone advance expeditiously, if Plaintiff does not comply with the Court's orders and respond to Defendants' draft. Plaintiff has been on notice of his obligation to respond since June of 2005. Furthermore, the Court's need to manage its docket is best served by dismissal. This case has been pending in this Court for nearly three years. When cases such as this one linger without resolution, it is only logical that the Court's docket becomes unmanageable. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.) (public's interest in expeditious resolution of litigation and court's need to manage its docket generally supports court's decision to dismiss), cert. denied, 506 U.S. 915 (1992). The third factor also supports dismissal. Plaintiff's actions in failing to comply with Court orders and in failing to respond directly to Defendants' proposed pretrial order impairs Defendants' ability to move this case forward. Moreover, Plaintiff has shown a repeated pattern of offering excuses for his failure to participate in this case. Although Plaintiff has

Plaintiff did send a letter to the Court dated June 14, 2006 stating that the Defendants' statement in the proposed pretrial order "coincided" with Plaintiff's interests. However, this one sided communication with the Court does not satisfy the requirement to submit a joint pretrial order. Plaintiff's active participation with Defendants in the creation of that document was both necessary and compulsory. -3Document 75 Filed 01/25/2007 Page 3 of 5

2

Case 2:04-cv-00103-SRB-ECV

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

filed spurious motions to continue and receive copies of documents, he has not "prosecuted" his case (Doc. ## 51, 53, 54, 56, 57). "The failure to prosecute diligently is sufficient by itself to justify a dismissal even in the absence of a showing of actual prejudice to the defendant from the failure." Morris v. Morgan Stanley & Co., 942 F.2d 648, 651 (9th Cir. 1991) (emphasis added) (quoting Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976)). Here, Plaintiff's complete failure to respond directly to Defendants' proposed pretrial order, is sufficient grounds for the Court to dismiss under Rule 41(b). See e.g., West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1524 (9th Cir. 1990) (incurring additional expense and loss of time constitutes sufficient prejudice to dismiss). The finding of prejudice is strengthened by Plaintiff's repeated assertion that he is currently unable to prosecute his case from prison. See Malone v. United States Postal Serv., 833 F.2d 28, 131 (9th Cir. 1987) (finding of prejudice strengthened by determination that excuses for dilatory conduct are groundless). The fourth factor, the public policy favoring disposition of cases on their merits, will rarely, if ever, support dismissal. However, this factor is not entitled to much weight in a case such as this one in which Plaintiff himself is precluding a decision on the merits by refusing to directly file a response to Defendants' proposed pretrial order, despite ample opportunity to do so. Finally, the fifth dismissal factor, the availability of less drastic sanctions, weighs in favor of dismissal. The Court "need not exhaust every sanction short of dismissal before finally dismissing a case." Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Indeed, the Ninth Circuit has held that warning the plaintiff of the possibility of dismissal before actually ordering dismissal meets this requirement. See Ferdik, 963 F.2d at 1262 (concluding that warning of dismissal is sufficient to show that court considered less drastic alternatives); Malone, 833 F.2d at 132. The Court, in its November 9, 2006 Order, explicitly stated that Plaintiff's failure to prosecute should elicit an appropriate motion from Defendants (Doc. # 68). However, Plaintiff has failed to adequately respond to Defendants motion or -4Document 75 Filed 01/25/2007 Page 4 of 5

Case 2:04-cv-00103-SRB-ECV

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

provide any justification for his complete failure to prosecute his case. In sum, considering each of the above five factors, the Court finds that dismissal for failure to comply with Court orders and for failure to prosecute is warranted. Plaintiff's failure to directly respond to Defendants' pretrial order, and to comply with the Court's orders, does not stem from an inability to do so, but rather from a refusal to do so. Under the circumstances of this case, Plaintiff is solely responsible for the lack of compliance with the Court's Order.3 Accordingly, the Complaint and this action will be dismissed. IT IS ORDERED that Plaintiff's Objection to the Magistrate Judge's November 9, 2006 Order (Doc. # 72) is OVERRULED as untimely. IT IS FURTHER ORDERED that Defendants' Motion to Dismiss for Lack of Prosecution (Doc. # 69) is GRANTED. accordingly. The Clerk of Court must enter judgment

DATED this 23rd day of January, 2007.

Plaintiff's pro se status does not immunize him from the sanctions authorized by the Federal Rules. "[A]ll litigants, including pro ses, have an obligation to comply with court orders. When they flout that obligation, they, like all litigants, must suffer the consequences of their actions." McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2nd Cir. 1988). -5Document 75 Filed 01/25/2007 Page 5 of 5

3

Case 2:04-cv-00103-SRB-ECV