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

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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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9 Frank Andrew Vasquez, No, CV 03-0012-PHX—ROS (LOA)
l0 Plaintiff, g ORDER
ll v.
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I3 Officer Scott Hazelett, 3
Defendant.
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I6 Pending before the Court is Defendant's motion to dismiss for failure to prosecute under
l7 Rule 4l(b) of the Federal Rules of Civil Procedure. For the following reasons. this motion
18 is granted.
19 I. F ACTUAL BACKGROUND
20 On January 2, 2003, Plaintiff Frank Vasquez filed suit against the Defendant, Officer
21 Scott Hazelett ("Hazelett"). In the Notice of Assignment issued the following day, the
22 Court ordered Plaintiff to mail copies of every document filed to all defendants or their
23 attorneys in accordance with the Federal Rules of Civil Procedure, and warned that the
24 failure to do so could result in a document being struck or the case being dismissed. (Doc.
25 #2). On January 9, 2003, the Court ordered Defendant Hazelett to answer Plaintiffs
26 complaint. It further ordered Plaintiff, once again, to send a copy of any additional
27 documents or pleadings to Defendant Hazelett or his counsel or risk having the case
28 dismissed pursuant to Rule 41. (Doc. #3). On October 7, 2003, Plaintiff amended his
ase 2:03-cv-OOO12-ROS Document 19 Filed 11/O4/2005 Page 1 of 3

1 complaint, (Doc. #6), but never served Defendant Hazelett or his counsel. In his Notice
2 of Appearance, Defendant Hazelett notified the Court that he had not been served. (Doc.
3 #7). Having received Hazelett's notice of appearance, Plaintiff filed a response on
4 October 23, 2003, requesting a waiver of the service requirement and a class
5 certification} (Doc. #8). No further action had been taken by either party until this
6 pending motion, which was filed on July 27, 2005.
7 I. DISCUSSION
8 A. Motion to Dismiss for Failure to Prosecute
9 Rule 41(b) of the Federal Rules of Civil Procedure allows a defendant to move for
10 dismissal of an action for "failure of the plaintiff to prosecute or comply with these rules
11 or any order of the court." District courts look to tive factors when deciding whether to
12 dismiss for failure to prosecute: (1) the public's interest in expeditious resolution of
13 litigation; (2) the cou1t‘s need to manage its own docket; (3) the risk of prejudice to the
14 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the
15 availability of less drastic sanctions. ln Re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994)
16 (citing Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)). District courts are
17 not, however, required to make specific findings on each of the essential factors. See
18 _l§_s_cm,3lF.3dat 1451.
19 Applying 's analysis to this case, the first two factors are concerned with
20 determining whether the plaintiff has caused unreasonable delay in prosecuting the action.
21 ld; at 1451-52. This case was initially filed three years ago, the complaint was amended two
22 years ago, and still Defendant has yet to be served, despite two orders directing Plaintiff to
23 serve Defendant or counsel with all future pleadings. Furthermore, Plaintiff has taken no
24 additional steps, including responding to this motion, in more than two years. The Court is
25 inclined to view Plaintiffs inactivity as an unreasonable delay in the prosecution of this case.
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28 'This was not filed as a class action lawsuit.
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l The third factor, prejudice to the defendant, is presumed from an unreasonable delay.
2 S; id, at 1452. The plaintiff can rebut this presumption by showing that prejudice did not
3 occur. ld, Thus, if a court finds an unreasonable delay and, as in this case, no rebuttal is
4 made, then a court will presume that prejudice has occurred. Accordingly, this Court finds
5 that prejudice has occurred.
6 When considering the fourth factor, courts weigh the policy interest in disposing of
7 cases on their merits against the plaintiffs delay and the prejudice suffered by the defendant.
8 & Q at 1454. The policy in favor of disposing of cases on the merits does not outweigh
9 plaintiffs responsibility to "move towards [a] disposition [ofthe case] at a reasonable pace."
10 BL (quoting Malone v. United States Postal Serv., 833 F .2d 128 (9th Cir. 1987)). Plaintiff
1 1 has failed to meet his responsibility. Accordingly, the Court finds that the policy interest in
12 disposing of cases on their merits is outweighed by the unreasonable delay caused by the
13 Plaintiff and the prejudice presumably suffered by the Defendant.
14 Finally, the Court must consider the availability and adequacy of sanctions. Sc;
15 , 31 F.3d at 1455. This is done to avoid the harshness of dismissal, however, the Court
16 is not required to explain why less drastic measures are infeasible. See Q, at 1454-55.
17 Although explanation is not needed, monetaiy sanctions would be in adequate, because the
18 Plaintiff is proceeding informa pauperis and has failed to heed the Court's warning. (Doc.
19 #3).
20 Therefore, based on the above factors, this Court finds it appropriate under Rule 4 1 (b)
21 to dismiss Plaintiffs action for failure to prosecute.
22 Accordingly,
23 IT IS ORDERED that Plaintiffs action be DISMISSED.
24 DATED this day of October, 2005.
26 I i
27 _ oslyn O. _Si1yer
28 United States District Judge
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