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

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

TEMPE CITY ATTORNEY'S OFFICE MARLENE A. PONTRELLI, #016980 ANDREW B. CHING, #016144 KARA L. STANEK, #020161 21 E. Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280 Phone: (480) 350-8227 Fax: (480) 350-8645 Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Tekenni Hawk Montez, No. Plaintiff, v. Tempe Police Dept., et al., Defendants. MOTION TO DISMISS FOR LACK OF PROSECUTION CV03-1347-PHX-SRB

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendants hereby move to dismiss Plaintiff's Complaint, pursuant to Rule 41(b) of the Arizona Rules of Civil Procedure. This Motion is more fully supported by the attached Memorandum of Points and Authorities. DATED this 9th day of August, 2005. TEMPE CITY ATTORNEY'S OFFICE

/S/ Marlene A. Pontrelli Andrew B. Ching Kara Stanek Attorneys for Defendants

Case 2:03-cv-01347-SRB

Document 20

Filed 08/09/2005

Page 1 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

MEMORANDUM OF POINTS AND AUTHORITIES I. PROCEDURAL BACKGROUND On July 15, 2003 the Plaintiff filed a prisoner complaint alleging a civil rights violation for excessive force under 42 U.S.C. § 1983. An Answer for Defendant Shearan was filed on October 3, 2003. On October 6, 2003, the Plaintiff filed a Motion for Judgment by Default against Defendant Shearan and on October 9, 2004 filed a Second Amended Complaint. Magistrate Judge Sitver recommended denial of Plaintiff's Motion for Judgment by Default and granting Plaintiff leave to file the Second Amended Complaint on February 24, 2004. At the same time, the Court ordered the Plaintiff serve a copy of the Second Amended Complaint dated October 6, 2003 within 20 days to Defendants Carpena, Hampton and Officer "John Doe" and timely file a certificate of service indicating such for Defendants Carpena and Hampton. Magistrate Judge Sitver ordered the Plaintiff to serve a copy of his Second Amended Complaint dated October 6, 2003 on Defendant Shearan and timely file a certificate of service indicating as such. II. A. LEGAL ANALYSIS Failure to Prosecute under Federal Rules of Civil Procedure, Rule 41(b) A defendant may move for dismissal of an action for failure of the plaintiff to prosecute. Rule 41(b) of the Federal Rules of Civil Procedure. The district court is required to weigh five factors in its determination for dismissal for lack of prosecution: 1. 2. 3. 4. 5. Public interest in expeditious resolution of litigation; The court's need to manage its docket; The risk of prejudice to defendants; Public policy favoring disposition of cases on merits; and The availability of less drastic actions.

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In re Eisen, Moneymaker v. CoBen, 31 F.3d 1447, 1451 (9th Cir. Ct. App. 1994). The court is not required to make specific findings on each of the five factors. Id. With respect to the first factor, a court must find unreasonable delay in order to dismiss a case for lack of prosecution. Id. In the CoBen case, the court specifically found 2
Case 2:03-cv-01347-SRB Document 20 Filed 08/09/2005 Page 2 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

that a four year delay was "inherently unreasonable." Id. Financial difficulties do not excuse a plaintiff's delay. Malone v. United States Postal Service, 833 F.2d 128 (9th Cir.1987). In this case, litigation has been pending for two years with no action by the Plaintiff for nearly a year and half. The Plaintiff was in custody by the Arizona

Department of Corrections at the time he filed the Complaint and continues to be in their custody. There has been no change in his status to warrant such a lengthy delay in prosecuting his case. The second factor is the court's need to manage its docket which directly relates to the first factor of public interest in expeditious resolution of litigation. A reviewing court gives deference to the district court as to docket management since the district court is in the best position to know when its docket may become unmanageable. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). This Court has enough active cases

docketed to warrant disposing of those where the Plaintiff has not done his due diligence in following the case through as required by law. The third factor in the test is the risk of prejudice to the defendant. The law presumes injury from delay. Anderson v. Air West, Inc, 542 F.2d 522, 524 (9th Cir.1976). The prejudice in this case is the loss of memory of all involved parties and witnesses. There has been no testimony, no depositions, and no interviews. That loss of memory severely impairs the ability of the defendants to go to trial. The fourth factor is that public policy favors disposing of a case on its merits. The CoBen court states that "determining whether dismissal is warranted, the courts weighs this factor against plaintiff's delay and the prejudice suffered by the defendant." 34 F.3d at 1454. Further, the Court need not scrutinize the merits of a case when reviewing a dismissal. Id. In fact, even where a plaintiff had demonstrated the strength of his case, a dismissal is still appropriate if the plaintiff has ignored his responsibilities to the court to prosecute the case. Air West, Inc., 542 F.2d at 526. In this case, the Plaintiff has

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

abandoned his suit without providing the Court sufficient information to even begin to evaluate the strength of his case and prior to a procedural status that allows the court 3
Case 2:03-cv-01347-SRB Document 20 Filed 08/09/2005 Page 3 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

decide the case on its merits. The plaintiff has failed to move the case forward at a reasonable pace. The final factor set forth in weighing whether to dismiss a case for lack of prosecution, is the availability of less drastic actions. The consideration of alternatives to dismissal are not necessary to support a decision to dismiss. CoBen, 34 F.3d. at 14541455. In this case, meaningful alternatives do not exist. In that case, the plaintiff argued a warning prior to dismissal was a possible less drastic sanction. Id. at 1455. The court found that discovery or a trial schedule was insufficient to remedy the prejudice defendants' suffered. Id. Here, Plaintiff has been afforded several opportunities to amend and alter his complaint. He has been given specific instructions on proceeding. During the initial stages of the lawsuit, he was active in his filings. However, in the last year and a half, he has not diligently brought his case forward. Further, given the nature of the cause, Plaintiff's pro se and prisoner status, monetary sanctions are not appropriate. Therefore, due to public interest, judicial economy, prejudice to the Defendants, inability to decide the case on its merits and the egregious length of time of delay, dismissal is the appropriate remedy. B. Insufficiency of Service of Process Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and Rule 2.12(b)(3)(B)(i) of the Rules of Practice of the United States District Court ("Local Rules"), if the Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on each Defendant Carpena and Hampton within 60 days of the filing of the Court's Order dated February 24, 2004, the action may be dismissed as to each Defendant not served. Neither Defendant Carpena nor Hampton was served. Furthermore, Defendant Shearan was not served a copy of the Second Amended Complaint within the 20 day time frame granted by Magistrate Judge Sitver in the February 24, 2004 order. The Plaintiff has failed to meet the statutory requirements for service for Defendants Carpena, Hampton and Shearan. Therefore, the case against those parties should be dismissed. 4
Case 2:03-cv-01347-SRB Document 20 Filed 08/09/2005 Page 4 of 6

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

C.

Failure to Identify the Unknown Defendant While in its Report and Recommendation dated February 24, 2004, the Court noted

that "use of John Doe-type appellations" to identify a defendant is not favored, the Plaintiff was afforded the opportunity to identify the defendant. However, the Plaintiff

has failed to amend his complaint, or even for leave to amend his complaint, to include the true name of the John Doe Officer defendant. The policy of permitting liberal amendment of pleadings is balanced with factors including undue delay, dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment. Forman v. Davis, 371 U.S. 178, 182 (1962). The lapse in this case constitutes undue delay. The alleged incident occurred April 29, 2003 and the initial complaint was filed July 15, 2003. John Doe Officer was not a named defendant at that time. The Plaintiff filed his First Amended Complaint July 24, 2003 and still did not name John Doe Officer. The Plaintiff then filed a Motion to Submit a Second Amended Complaint and lodged that Second Amended Complaint (denied), a Motion for Leave to Amend Complaint (granted). On October 9, 2003, Plaintiff filed a second Second Amended Complaint finally naming John Doe Officer as a defendant. Plaintiff has had more than sufficient time to obtain information on all officers working at the location, date and time of the alleged incident. The fact that the Plaintiff was able to name numerous other defendants supports that premise. The Plaintiff has been afforded more than sufficient time to obtain any information but has not therefore undue delay has occurred. The length of time of the delay, in consideration with Plaintiff's frequency of filings early on in the proceedings and the fact that those filings trickled off, gives the appearance of procrastination. The complaint naming John Doe Officer as a defendant was the third complaint filed and was not filed until six months after the alleged incident, three months after the initial complaint. Certainly the facts support the contention that the Plaintiff failed to cure deficiencies in the prior complaint, amended complaints, and in fact 5
Case 2:03-cv-01347-SRB Document 20 Filed 08/09/2005 Page 5 of 6

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

since the filing of this Second Amended Complaint. Undue prejudice shall occur to Defendant with the allowance of yet another amendment at this stage. The sheer amount of time already lapsed has hindered investigation and preparation of a defense by preserving testimony and witnesses. John Doe Officer Defendant cannot overcome that prejudice. Excessive time has lapsed and the case against John Doe Officer should be dismissed with prejudice. CONCLUSION Plaintiff's Complaint is legally deficient. Defendants request this Court's order dismissing the Complaint. RESPECTFULLY SUBMITTED this 9th day of August, 2005. TEMPE CITY ATTORNEY'S OFFICE

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORIGINAL and one copy of the foregoing filed this 9th day of August, 2005, with: Clerk of the Court United States District Court 401 W. Washington Phoenix, AZ 85003 COPY of the foregoing mailed this 9th day of August, 2005, to: ASPC ­ Lewis Stiner Unit Tekenni Montez, #102312 P. O. Box 3100 Buckeye, AZ 85326 Plaintiff

/S/ Marlene A. Pontrelli Andrew B. Ching Kara L. Stanek 21 E. Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280 Attorneys for Defendants

6
Case 2:03-cv-01347-SRB Document 20 Filed 08/09/2005 Page 6 of 6