Opinion
CV-21-01850-PHX-ROS (DMF)
10-31-2022
Audia Garcia, et al., Plaintiffs, v. State of Arizona, et al., Defendants.
TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine, United States Magistrate Judge.
This matter is on referral to the undersigned for pretrial proceedings pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 4 at 2-3)
Defendants removed this matter to this Court from Maricopa County Superior Court in November 2021. (Doc. 1) On September 9, 2022, Plaintiffs Audia Garcia and Eleana Garcia (“Plaintiffs”) were ordered to show cause within twenty-one days of the Court's Order why Defendant Unknown Paz and Defendant Unknown Parties, listed as John Does I-X and Jane Does I-X, ABC Corporations I-X, and XYZ Limited Partnerships I-X in the Notice of Removal and Complaint, should not be dismissed from this action without prejudice. (Doc. 41 at 1-2) Plaintiffs' response was due on September 30, 2022. Plaintiffs did not respond to the Court's September 9, 2022, Order to Show Cause.
On October 6, 2022, the Court issued a second Order to Show Cause and ordered 1 Plaintiffs to show cause within fourteen days of the Court's Order as to why Defendant Unknown Paz and Defendant Unknown Parties should not be dismissed from this action without prejudice. (Doc. 50 at 4) Plaintiffs' response was due on October 20, 2022. Plaintiffs did not respond to the Court's October 6, 2022, Order to Show Cause.
For the reasons set forth below, it is recommended that Defendant Unknown Paz and Defendant Unknown Parties be dismissed from this action without prejudice for Plaintiffs' failure to prosecute and failure to comply with Court Orders regarding these particular defendants.
I. PROCEDURAL HISTORY AND POSTURE
On October 4, 2021, Plaintiffs filed a Complaint in Maricopa County Superior Court. (Doc. 1-3 at 5-33) Plaintiffs named as Defendants the State of Arizona; Jeff Hood; Walt Pesterfield; Isabel Paz; John Doe Paz; Monica Medina; A Dream Called Hope, LLC; Phillip Parks; Tammy Horne; Adobe Mountain School; John Does I-X; Jane Does I-X; ABC Corporations I-X; and XYZ Partnerships I-X. (Id. at 5-6) In the October 4, 2021, Complaint, Plaintiffs allege seven counts for relief, of which Defendant Unknown Paz and Defendant Unknown Parties are named in three. (Id. at 16-32) In Count One, Plaintiffs allege that all Defendants were negligent. (Id. at 16-20) In Count Four, Plaintiffs allege a claim against all Defendants under 42 U.S.C. § 1983 and Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). (Id. at 25-27) In Count Seven, Plaintiffs allege that all Defendants caused Plaintiffs a loss of consortium. (Id. at 31-32) Defendants State of Arizona and Medina were served in October 2021. (Id. at 84-85)
Although the Notice of Removal and the Complaint's caption do not name Adobe Mountain School as a defendant (Doc. 1 at 1; Doc. 1-3 at 5), the body of the Complaint names Adobe Mountain School as a defendant. (See Doc. 1-3 at 7)
Counts Five through Seven of the Complaint are misnumbered. Based on the order of Plaintiffs' claims, the Court will construe this count as Count Seven.
On November 3, 2021, Defendants State of Arizona, Medina, Hood, and Pesterfield removed this action to this Court. (Doc. 1) Defendant Paz was served on November 4, 2021. (Doc. 3) On November 5, 2021, the Court ordered Plaintiffs to serve or seek a waiver of service for each of the remaining unserved Defendants and ordered the served, named 2 Defendants to answer the Complaint. (Doc. 4 at 2-3)
On January 18, 2022, Defendants Paz, Hood, Medina, Pesterfield, and State of Arizona filed answers to Plaintiffs' Complaint. (Docs. 9, 12, 13) On February 4, 2022, the Court ordered Plaintiffs to show cause why Defendants A Dream Called Hope, LLC, Parks, Horne, and Adobe Mountain School should not be dismissed for failure to serve pursuant to Fed.R.Civ.P. 4(m). (Doc. 15) Although Plaintiffs did not respond to the Court's February 4, 2022, Order to Show Cause, Defendants Parks, Horne, and A Dream Called Hope, LLC filed their answer to the Complaint on February 25, 2022. (Doc. 16) On April 1, 2022, Defendants Parks, Horne, and A Dream Called Hope, LLC filed a notice of nonparties at fault (Doc. 18), which Defendants Paz, State of Arizona, Medina, Hood, and Pesterfield joined. (Docs. 19, 21)
See footnote 1, supra.
Following a case management conference held on April 28, 2022 (Doc. 24), the Court issued a case management order on April 29, 2022, and ordered that “[t]he deadline for motions to join parties, amend pleading, and file supplemental pleadings is 70 days from the date of this Order is filed. The deadline to substitute unknown parties is August 19, 2022.” (Doc. 23 at 1-2) Plaintiffs did not join parties, substitute Defendant Unknown Paz or Defendant Unknown Parties, or otherwise supplement or amend the Complaint.
On September 9, 2022, the Court issued an Order to Show Cause (“First September 9, 2022, Order to Show Cause”) and stated that:
[o]n April 28, 2022, a Telephonic Case Management Conference was held and a Case Management Order was issued (Docs. 24, 25). The Case Management Order set a deadline of 70 days for the filing of any motion to join parties, substitute unknown parties, amend pleadings, and file supplemental pleadings and further set a deadline of August 19, 2022, to substitute unknown parties (Doc. 23 at 1-2). The deadline to join, substitute, amend, or supplement the complaint has passed.(Doc. 41 at 1) The Court ordered Plaintiff to show cause within twenty-one days of the Court's Order why Defendant Unknown Paz and Defendant Unknown Parties, listed as John Does I-X and Jane Does I-X, ABC Corporations I-X, and XYZ Limited Partnerships I-X in the Notice of Removal and Complaint, should not be dismissed from this action 3 without prejudice. (Id. at 1-2) Plaintiffs' response was due on September 30, 2022. Plaintiffs did not respond to the Court's First September 9, 2022, Order to Show Cause, nor did Plaintiff move to join parties, substitute Defendant Unknown Paz or Defendant Unknown Parties, or supplement or amend the Complaint.
Also on September 9, 2022, the Court issued a separate Order to Show Cause (“Second September 9, 2022, Order to Show Cause”) as to why Defendant Adobe Mountain School should not be dismissed for Plaintiff's failure to serve pursuant to Fed.R.Civ.P. 4(m). (Doc. 42) On September 27, 2022, Plaintiffs filed a response to the Court's Second September 9, 2022, Order to Show Cause. (Doc. 45)
The Court's Second September 9, 2022, Order to Show Cause is not at issue in this Order.
On October 6, 2022, the Court issued an additional Order to Show Cause and stated that it would allow Plaintiffs “a final opportunity to respond to the Court's Order to Show cause.” (Doc. 50 at 2) The Court ordered Plaintiff's to show cause within fourteen days of the Court's Order why Defendant Unknown Paz and Defendant Unknown Parties, listed as John Does I-X and Jane Does I-X, ABC Corporations I-X, and XYZ Limited Partnerships I-X in the Notice of Removal and Complaint, should not be dismissed from this action without prejudice. (Id. at 4) Plaintiffs' response was due on October 20, 2022. Plaintiffs did not move to join parties, substitute Defendant Unknown Paz or Defendant Unknown Parties, or supplement or amend the Complaint. Plaintiffs did not respond to the Court's October 6, 2022, Order to Show Cause, and the time to do so has expired.
II. ORDER TO SHOW CAUSE AS TO DEFENDANT UNKNOWN PAZ AND DEFENDANT UNKNOWN PARTIES
The issue before the Court is whether to dismiss Defendant Unknown Paz and Defendant Unknown Parties, listed as John Does I-X and Jane Does I-X, ABC Corporations I-X, and XYZ Limited Partnerships I-X in the Notice of Removal and Complaint.
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 a claim sua sponte for 4 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. It is Plaintiffs' duty to prosecute their case. Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). A court need not provide notice to a plaintiff before dismissal. Link, 370 U.S. at 632.
To determine whether a plaintiff's failure to prosecute warrants dismissal of a claim, 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 and second factors weigh in favor of dismissal. Dismissal would allow the Court to manage its docket and would satisfy the “public's interest in expeditious resolution” of Plaintiff's claim. Id. If Plaintiffs do not substitute Defendant Unknown Paz and Defendant Unknown Parties with named parties who may be served with the Complaint, the resolution of Plaintiffs' claims will be delayed.
As for the third factor, Defendants could suffer prejudice if Defendant Unknown Paz and Defendant Unknown Parties are not dismissed. Defendant Unknown Paz and Defendant Unknown Parties have not received notice of Plaintiffs' lawsuit, nor have Plaintiffs served Defendant Unknown Paz and Defendant Unknown Parties with the 5 Complaint. Defendant Unknown Paz and Defendant Unknown Parties therefore have not received notice of Plaintiffs' claims against them. Although the loss of “a quick victory” is not prejudicial, Bateman v. United States Postal Service, 231 F.3d 1220, 1225 (9th Cir. 2000), Defendant Unknown Paz and Defendant Unknown Parties would have to defend a lawsuit regarding events that occurred over two years ago if they are not dismissed. (See Doc. 1-3 at 11-15) In addition, Defendants State of Arizona, Paz, Pesterfield, Medina, and Hood have had notice of Plaintiffs' claims against them since October or November 2021, when Defendants State of Arizona, Paz, Pesterfield, Medina, and Hood were served, made an appearance, or removed this matter to this Court. (Doc. 1; Doc. 1-3 at 84-87; Doc. 3) Defendants Parks, Horne, and A Dream Called Hope, LLC have had notice of Plaintiffs' claims since at least February 2022, when Defendants Parks, Horne, and A Dream Called Hope, LLC filed an answer to Plaintiffs' Complaint. (Doc. 16) Further, Defendants Paz, Hood, Medina, Pesterfield, and State of Arizona filed answers in January 2022. (Docs. 9, 12, 13) Defendants who have made an appearance in this matter will be subject to delay because of Plaintiffs' failure to substitute named parties for Defendant Unknown Paz and Defendant Unknown Parties. See Stewart v. Medical Review Committee, 2013 WL 5289526, at *3 (D. Ariz. Sept. 18, 2013) (order adopting report and recommendation) (delay in prosecution, plus age of the case, favored dismissal). The third factor weighs in favor of dismissal at least insofar as the delay likely suffered by the served and appearing defendants should the unserved defendants not be dismissed at this time.
The fourth factor does not support dismissal, as dismissal of Defendant Unknown Paz and Defendant Unknown Parties at this 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. On April 28, 2022, the Court allowed 70 days for Plaintiffs to substitute unknown parties. (Doc. 23 at 1-2) The Court has twice ordered Plaintiffs to show cause why Defendant Unknown Paz and Defendant Unknown Parties should not be dismissed from this action without prejudice. (Docs. 41, 50) Plaintiffs have not responded to the Court's September 9, 2022, 6 or October 6, 2022, Orders to Show Cause regarding Defendant Unknown Paz and Defendant Unknown Parties. Plaintiffs have otherwise shown their ability and desire to comply with the Court's September 9, 2022, Order to Show Cause as to why this Court should not dismiss Defendant Adobe Mountain School for failure to serve pursuant to Fed.R.Civ.P. 4(m). (See Docs. 42, 45) Plaintiffs filed a response to the Court's September 9, 2022, Order to Show Cause (Doc. 45) pertaining to Adobe Mountain School yet did not file a response to the Court's September 9, 2022, Order to Show Cause regarding Defendant Unknown Paz and Defendant Unknown Parties, despite both Orders to Show Cause being filed the same day.
Although a dismissal for failure to prosecute operates as an adjudication on the merits “[u]nless the dismissal order states otherwise[,]” Fed.R.Civ.P. 41(b), a dismissal with prejudice would be unnecessarily harsh under the circumstances before the Court. Therefore, the Court recommends that Defendant Unknown Paz and Defendant Unknown Parties be dismissed without prejudice. See, e.g., Matthews v. Ryan, 2019 WL 4975725, at *2 (D. Ariz. Oct. 8, 2019) (dismissing defendants without prejudice for failure to prosecute and substitute unknown parties); Ridgeley v. Cole, 2022 WL 252400, at *1 (D. Ariz. Jan. 27, 2022) (same).
Because Plaintiffs have failed to prosecute their claims against Defendant Unknown Paz and Defendant Unknown Parties and have failed to comply with Court Orders regarding such defendants, the Court may use its discretion to dismiss Defendant Unknown Paz and Defendant Unknown Parties; it is recommended that the Court do so. See Link, 370 U.S. at 630-31.
III. CONCLUSION
Because Plaintiffs have failed to prosecute their claims against Defendant Unknown Paz and Defendant Unknown Parties and have failed to comply with Court Orders regarding such defendants, it is recommended that Defendant Unknown Paz and Defendant Unknown Parties be dismissed without prejudice.
Accordingly, 7
IT IS RECOMMENDED that Defendant Unknown Paz and Defendant Unknown Parties be dismissed without prejudice.
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. 8