Opinion
CV-23-0239-PHX-JFM
04-26-2023
Jill Whitmer, Plaintiff v. Angie Baugh, et al., Defendants.
REPORT & RECOMMENDATION TO SR. DISTRICT JUDGE MCNAMEE
JAMES F. METCALF, MAGISTRATE JUDGE
This matter is before the undersigned magistrate judge awaiting consents pursuant to 28 U.S.C. § 636(c). Because the appropriate resolution of this matter is dispositive of claims or defenses, the undersigned proceeds by way of a Report & Recommendation to Senior District Judge McNamee, pursuant to 28 U.S.C. § 636(b)(1)(B) and General Order 21-25.
Plaintiff filed a Complaint (Doc. 1) alleging a dispute with a landlord. Plaintiff was granted leave to proceed in forma pauperis. (Order 2/28/23, Doc. 12.) The Court screened the Complaint determined that it failed to make sufficient allegations to show the subject matter jurisdiction of this Court. The Complaint was dismissed with leave to amend. (Order 3/1/23, Doc. 13.)
Plaintiff has the general duty to prosecute this case. Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). See also Fed.R.Civ.P. 41(b) (dismissal for failure to prosecute); Link v. Wabash R. Co., 370 U.S. 626, 630 (1962) (authority of a court to dismiss sua sponte under Rule 41(b) for lack of prosecution); and Ferdik v. Bonzelet, 963 F.2d 1258, 1260-1261 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).
In determining whether Plaintiff's failure to prosecute warrants dismissal of the case, the Court must weigh: "(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." Carey, 856 F.2d at 1440 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). "The first two of these factors favor the imposition of sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions." Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990).
Here, the first (expeditiousness), second (management), and third (prejudice) factors favor dismissal of this case. Plaintiff's failure to file an amended complaint indicates that Plaintiff is content to let the case languish and/or be dismissed. The same things prevent this Court from effectively managing its docket. Without a viable complaint, service cannot be ordered, or the matter pressed to conclusion. And defendants face responding to a complaint of which they have had no notice.
The fourth factor (merits decision), as always, weighs against dismissal.
The fifth factor (alternatives) requires the Court to consider whether a less drastic alternative is available, attempted, and has the party was warned. Plaintiff was warned in about the risk of dismissal. “Plaintiff is cautioned that if she fails to timely file an amended complaint, this action may be dismissed without further notice.” (Order 3/1/23, Doc. 13 at 4-5.) Plaintiff's in forma pauperis status and the pervasive impact of her failure to file an amended complaint, indicate that meaningful sanctions less drastic than dismissal are not available. For example, monetary sanctions will likely be unenforceable, partial limitations in evidence or claims would be arbitrary and would likely result in evisceration of the claims.
The undersigned concludes that only one less drastic sanction is realistically available. In the instant case, and in the absence of a showing that Plaintiff's actions are the result of an intent to obtain unfair advantage (as opposed to simply abandoning the case) the undersigned finds that a dismissal with prejudice would be unnecessarily harsh.
IT IS THEREFORE RECOMMENDED this case be DISMISSED WITHOUT PREJUDICE.
EFFECT OF RECOMMENDATION
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), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”