Opinion
CV-22-1192-PHX-JAT (JFM)
01-23-2024
Dequandrick Wilson, Plaintiff v. City of Phoenix, et al., Defendants.
REPORT & RECOMMENDATION
JAMES F. METCALF UNITED STATES MAGISTRATE JUDGE
This matter is before the undersigned magistrate judge on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of this matter is dispositive of claims or defenses, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
A. BACKGROUND
Plaintiff commenced this case on July 15, 2022 by filing, through counsel, his Complaint (Doc. 1). Plaintiff sued Defendants City of Phoenix, Officers Gittings and Knipp, and various fictitiously named defendants asserting various claims emanating from an arrest of Plaintiff, including claims of excessive force, denial of medical care, etc. A service Order was issued on July 28, 2022 (Doc. 6).
Subsequently, Plaintiff's counsel withdrew. (See Order 2/14/23.)
Defendant Knipp and the fictitious parties were dismissed for failure to serve. (Order 6/8/23, Doc. 40) Various claims were dismissed on motion for failure to state a claim, leaving:
(1) Count One: Fourth Amendment excessive force against Defendant Gittings; (2) Count Three: negligence against the City of Phoenix based on the failure of fire department personnel to provide Plaintiff with medical treatment and the failure of jail officials to provide Plaintiff with medical treatment; (3) Count Five: battery against Gittings and the City of Phoenix; and (5) Count Seven:
intentional infliction of emotional distress against Gittings and the City of Phoenix.
(Order 11/17/23, Doc. 41 at 10.)
An Answer (Doc. 45) was filed by Phoenix and Gittings on December 8, 2023, and a Scheduling Order (Doc. 46) issued on December 12, 2023.
In the Court's Scheduling Order, the parties were ordered to file Individual Case Management Reports by January 2, 2024. (Order 12/12/23, Doc. 46 at 8, ¶ 5.1.) The Order explained:
5.3. Limited Purposes: The purpose of the individual case management reports is to facilitate the management of the case. It is NOT a treatise on the case. It is NOT the place to make detailed descriptions of facts or evidence or legal arguments. It is to assist the Court in having a rough understanding of the dispute between the parties and to define the appropriate schedule, limits on discovery, and other management issues. Nor do the reports take the place of motions for court action. Upon receipt of the parties' reports, the Court may undertake to modify the terms of this Order, particularly if the parties are in agreement on needed changes. Otherwise, the Court will issue an order affirming this Order. Thereafter, any party desiring a modification to this scheduling order, including limits on discovery, etc., may file an appropriate motion.
5.4. Timeliness: At some point the reports' utility for such purposes is lost because of delay. Accordingly, the parties are cautioned that only one extension of time, of no more than 7 days, will be granted for filing an individual case management report, and only upon extraordinary grounds.
Defendants filed their ICMR on January 2, 2024. Plaintiff did not comply.
On January 8, 2024, the Court issued an Order to Show Cause giving Plaintiff through January 16, 2024 to either file his ICMR, or show cause “why sanctions should not be imposed pursuant to Federal Rules of Civil Procedure 16(f) and 37(f), and why this case should not be dismissed for failure to comply with the Court's orders and failure to prosecute.” (Order 1/8/24, Doc. 48 at 2.)
Despite the passage of an additional 7 days after the deadline, Plaintiff has not filed his ICMR, responded to the Order to Show Cause, nor sought an extension of time to do so. Plaintiff is not incarcerated, and Plaintiff's copy of the Court's Order to Show Cause (Doc. 48) has not been returned undeliverable. Thus, it should be presumed Plaintiff's noncompliance is willful.
B. DISCUSSION
Plaintiff's Failures - The undersigned finds that Plaintiff has failed to comply with the Court's orders to: (1) prepare and file his ICMR; and (2) respond to the Order to Show Cause. Moreover, because these failings reflect not defects in adherence, but a failure to adhere by performing specific actions necessary to the prosecution of the case, the undersigned finds that Plaintiff has failed to prosecute this case.
Failure to Comply With Orders -Federal Rule of Civil Procedure 16(f) provides:
(1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney:
(A) fails to appear at a scheduling or other pretrial conference;
(B) is substantially unprepared to participate--or does not participate in good faith--in the conference; or
(C) fails to obey a scheduling or other pretrial order.
(2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses--including attorney's fees--incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 16(f). The referenced sanctions include:
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
Rule 37(f) also provides that “[i]f a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure.”
Thus, Rule 37(b)(2)(A)(v) permits as a sanction “dismissing the action or proceeding in whole or in part.” Such a sanction, if justified, is appropriate for failure to participate in pretrial planning as ordered. See Nascimento v. Dummer, 508 F.3d 905, 909 (9th Cir. 2007).
The Ninth Circuit has adopted a multi-factor analysis for applying such a sanction:
We have constructed a five-part test, with three subparts to the fifth part, to determine whether a case-dispositive sanction under Rule 37(b)(2) is just: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” The sub-parts of the fifth factor are whether the court has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of case-dispositive sanctions. This “test” is not mechanical. It provides the district court with a way to think about what to do, not a set of conditions precedent for sanctions or a script that the district court must follow.
Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). "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).
Failure to Prosecute - Moreover, 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 (9thCir. 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 the same five factors relevant to a dismissal under Rule 37(b)(2)(A)(v), i.e.: "(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).
Dismissal is Appropriate Sanction - Here, the first (expeditiousness), second (management), and third (prejudice) factors favor dismissal of this case. Plaintiff's failure to participate in the discovery planning process and failure to respond to the Court's Order to Show Cause all indicate that Plaintiff is content to let the case languish and/or be dismissed. The same things prevent this Court from effectively managing its docket.
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 the Order to Show Cause about the risk of dismissal, and sought Plaintiff's explanation to permit an attempt to address matters necessary to moving the case forward. Plaintiff's unwillingness to even respond to the Court, and the pervasive impact of his failure to participate in framing a scheduled, indicate that meaningful sanctions less drastic than dismissal are not available. Plaintiff's complete failure to respond suggests monetary sanctions will likely be ineffective, and 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. This action should therefore be dismissed without prejudice.
IT IS THEREFORE RECOMMENDED:
(A) The reference of this case to the magistrate judge be WITHDRAWN.
(B) Pursuant to Rules 16(f) and 41(b) of the Federal Rules of Civil Procedure this action
be DISMISSED WITHOUT PREJUDICE.
(C) The Clerk of the Court be directed to enter judgment accordingly.
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.”