Opinion
CV-22-02055-PHX-DMF
04-21-2023
Darren Leeadam Crawford, Plaintiff, v. Experian, et al., Defendants.
HONORABLE STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M FINE, UNITED STATES MAGISTRATE JUDGE
On December 5, 2022, Plaintiff Darren Leeadam Crawford (“Plaintiff”) filed a pro se Complaint. (Doc. 1; see also Doc. 8) Plaintiff also filed an Application for Leave to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2), which is a request to proceed in this matter in forma pauperis. On January 23, 2023, Plaintiff consented to proceed before a United States Magistrate Judge. (Doc. 12)
A redacted version of the Complaint has been filed at Doc. 8. (See also Docs. 6, 7, 9)
Before appearances and consent of defendants, there is not full consent for a Magistrate Judge to enter dispositive orders. See Williams v. King, 875 F.3d 500 (9th Cir. 2017). Thus, pursuant to General Order 21-25, this Report and Recommendation is made to Senior United States District Judge Stephen M. McNamee.
On January 25, 2023, the Court denied Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs. (Doc. 13 at 1) The Court ordered Plaintiff to pay the filing fee for this matter within thirty days of the Court's Order. (Id. at 2) Plaintiff did not pay the filing fee within thirty days of the Court's Order.
On March 17, 2023, the Court ordered Plaintiff to pay the filing fee within twenty-one days of the Court's Order or otherwise show cause in writing why this matter should not be dismissed for failure to timely pay the filing fee. (Doc. 14 at 2) The deadline for Plaintiff to pay the filing fee or otherwise show cause in writing was therefore April 7, 2023.
To date, Plaintiff has not paid the filing fee, nor has Plaintiff shown cause in writing why this matter should not be dismissed for failure to timely pay the filing fee. For the reasons set forth below, it is recommended that this matter be dismissed without prejudice for Plaintiff's failure to timely pay the filing fee and comply with Court Orders.
I. PROCEDURAL HISTORY AND POSTURE
On December 5, 2022, Plaintiff filed a pro se Complaint. (Doc. 1) In his Complaint, Plaintiff names as Defendants Experian, Transunion, and Equifax and alleges violations of 15 U.S.C. §§ 1692B(a)(2), 1692(E)(11), 1692g, and 1692b. (Id. at 2-3) On the same date as the filing of the Complaint, Plaintiff filed an Application for Leave to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2), which is a request for leave to proceed in this matter in forma pauperis.
After having been ordered to show cause for his failure to consent to Magistrate Judge Jurisdiction (Doc. 10), on January 23, 2023, Plaintiff agreed to Magistrate Judge Jurisdiction. (Doc. 12)
On January 25, 2023, the Court denied Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs for failure to qualify for in forma pauperis status, making the following findings:
After careful review of Plaintiff's Application, the Court finds that Plaintiff does not qualify for in forma pauperis status. Plaintiff signed and dated the affidavit in support of his Application to Proceed in District Court Without Prepaying Fees or Costs. (Doc. 2 at 1) In the Application, Plaintiff declares under penalty of perjury that Plaintiff is unable to pay the filing fee and other costs associated with this case. (Id.) Plaintiff reports a monthly income of $4,000 per month, reports $1,500 in funds in a checking account, reports
monthly expenses of $2,850, and has a 2014 Mercedes Benz that Plaintiff values at only $20. (Id. at 1-5) Plaintiff has no dependents. (Id. at 3) Plaintiff declares that he has not spent any money for expenses or attorney fees in relation to this action. (Id. at 5) Although Plaintiff states that he “recently relocated and lost some of [his] income due to the move[,]” Plaintiff also declares that he does not expect any major changes to his monthly income, expenses, or assets in the next twelve months. (Id.) Plaintiff does not provide any further explanation as to why he cannot pay the cost of these proceedings. Plaintiff states that his employment with Creative Capital Group began on January 1, 2019, and Plaintiff provides no end date for his employment. (Id. at 2) Given the information in the Application, the Court finds that Plaintiff is able to pay the filing fee and costs of these proceedings.(Doc. 13 at 2) The Court ordered that:
Plaintiff shall pay the $402 filing fee within thirty (30) days of this Order or this matter may be terminated. See Fed.R.Civ.P. 41(b); Ferdik v. Bonzelet, 936 F.2d 1258, 1260 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).(Id.) Therefore, the deadline for Plaintiff to pay the filing fee in this matter was February 24, 2023. Plaintiff did not pay the filing fee by February 24, 2023.
See https://www.azd.uscourts.gov/sites/default/files/documents/fee%20schedule.pdf (last accessed on 4/21/2023); see also 28 U.S. Code § 1914; https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule (last accessed on 4/21/2023).
On March 17, 2023, Plaintiff still had not paid the filing fee or any portion thereof, and the Court ordered:
that within twenty-one (21) days of this Order, Plaintiff shall either pay the $402 filing fee for this matter or otherwise show cause in writing filed with the Court as to why this matter should not be dismissed without prejudice for Plaintiff's failure to timely pay the filing fee. Failure to comply with this Order may result in dismissal of this action.(Doc. 14 at 2)
Thus, the extended deadline for Plaintiff to pay the filing fee or otherwise show cause in writing for his failure to timely do so was April 7, 2023. To date, Plaintiff has not paid the filing fee or any portion thereof; further, Plaintiff has not shown cause in writing filed with the Court as to why this matter should not be dismissed for Plaintiff's failure to timely pay the filing fee.
II. FAILURE TO COMPLY WITH COURT ORDERS/PAY FILING FEE
The issue before the Court is whether to dismiss this matter for Plaintiff's failure to comply with Court Orders, including failure to timely pay the filing fee.
In the absence of a motion to dismiss from a party, the United States Supreme Court has recognized that a district court has the inherent power to dismiss an action sua sponte for failure to comply with court orders or for lack of prosecution. Link v. Wabash R. Co., 370 U.S. 626, 629-33 (1962); c.f. Fed.R.Civ.P. 41(b) (“If the plaintiff fails to prosecute or comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.”). This inherent power is “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. at 630-31.
To determine whether a plaintiff's failure to comply with a court's orders warrants dismissal, a court weighs 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.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). A “district court abuses its discretion if it imposes a sanction of dismissal without first considering the impact of the sanction and the adequacy of less drastic sanctions.” United States v. National Medical Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, “a district court's warning to a party that his failure to obey the court's order will result in dismissal can satisfy the consideration of alternatives requirement.” Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (internal citations omitted).
Here, the first factor weighs in favor of dismissal, as dismissal would satisfy the “public's interest in expeditious resolution” of Plaintiff's claims. Henderson, 779 F.2d at 1423. If Plaintiff does not pay the filing fee or comply with Court Orders, the resolution of Plaintiff's claims will be delayed.
The second factor also weighs in favor of dismissal, as dismissal would allow the Court to manage its docket. Id.
As for the third factor, risk of prejudice to Defendants, no Defendant has received notice of Plaintiff's lawsuit, nor has Plaintiff served any Defendant with the Complaint (Doc. 1). Although the loss of “a quick victory” is not prejudicial, Bateman v. United States Postal Service, 231 F.3d 1220, 1225 (9th Cir. 2000), in determining whether Defendants may be prejudiced, the Court may consider Plaintiff's reasons for the failure to comply with Court Orders. Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). Here, Plaintiff has shown no cause for his failure to timely pay the filing fee. Plaintiff has made no filings in this matter since his January 23, 2023, agreement to Magistrate Judge Jurisdiction. Thus, the third factor weighs in favor of dismissal. See Simington v. Tucson Police Department, 2010 WL 11628816, at *3 (D. Ariz. Sept. 23, 2010) (risk of prejudice supported dismissal where plaintiff provided no valid reason for noncompliance with orders); Ortega v. Astrue, 2009 WL 587923, at *3 (D. Ariz. Mar. 6, 2009) (same).
The fourth factor does not support dismissal, as dismissal of Plaintiff's claims at this early stage would not support “the public policy favoring disposition of cases on their merits[.]” Henderson, 779 F.2d at 1423.
Finally, as to the fifth factor, alternative sanctions would likely be futile, which weighs in favor of dismissal. In the Court's January 25, 2023, Order, Plaintiff was ordered to pay the filing fee within thirty days of the Court's Order. (Doc. 13 at 2) Plaintiff did not pay the filing fee. In the Court's March 17, 2023, Order, Plaintiff was ordered within twenty-one days of the Court's Order to pay the filing fee or otherwise show cause in writing as to why this matter should not be dismissed without prejudice for Plaintiff's failure to timely pay the filing fee. (Doc. 14 at 2) Plaintiff did not pay the filing fee or otherwise show cause in writing for his failure to do so. Plaintiff has not made any filings in this matter since his January 23, 2023, agreement to Magistrate Judge Jurisdiction. (Doc. 12)
Further, the Court has warned Plaintiff about the possibility of dismissal of Plaintiff's lawsuit. On two occasions, the Court warned Plaintiff that “failure to comply with” the Court's Orders and failure to timely pay the filing fee “may result in dismissal of this action.” (Doc. 14 at 2; Doc. 13 at 2) Despite the Court's warnings, Plaintiff has not timely paid the filing fee.
Only one less drastic alternative sanction is available. Fed.R.Civ.P. 41(b) states that a dismissal for failure to comply with Court Orders operates as an adjudication on the merits “[u]nless the court in its order for dismissal otherwise specifies.” Under the circumstances before the Court, a dismissal with prejudice would be unnecessarily harsh. Therefore, the Court may use its discretion to dismiss this lawsuit without prejudice, and it is recommended that the Court do so. See Link, 370 U.S. at 630-31; see also RaulFestone v. Halikowski, 2019 WL 13214765, at *1 (D. Ariz. June 25, 2019) (accepting Report and Recommendation for dismissal without prejudice based on failure to comply with Court orders and failure to pay filing fee); Halloum v. Ryan, 2012 WL 12951307, at *2 (D. Ariz. Nov. 28, 2012) (dismissing without prejudice for failure to pay filing fee).
III. CONCLUSION
Because Plaintiff has not timely paid the filing fee and has failed to comply with Court Orders, it is recommended that this matter be dismissed without prejudice.
Accordingly, IT IS RECOMMENDED that this matter be dismissed without prejudice for failure to timely pay the filing fee and comply with Court Orders.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.