Opinion
Case No. 2:06-CV-01559-JCM-(RJJ).
January 23, 2008
ORDER
Presently before the court are Magistrate Judge Johnston's report and recommendations, recommending that the defendants' second motion to dismiss (# 23) be granted. The defendants filed their first motion to dismiss (#20) on May 18, 2007. The response to that motion was due by June 5, 2007. The defendants filed their second motion to dismiss on July 6, 2007. Responses to that motion were due by July 24, 2007.
Local Rule 7-2 requires that points and authorities in response to a motion be filed and served by an opposing party within fifteen days after service of the motion. The failure of a moving party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion.
Failure to follow a district court's local rules is a proper ground for dismissal. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Before dismissing the action, the district court is required to weigh several 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 o[n] their merits; and (5) the availability of less drastic sanctions." Id., quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
Plaintiff Paul Aswegan filed the complaint in this action on January 26, 2007, while in custody of the Nevada Department of Corrections ("NDOC"). He continued to file motions in this action through April 30, 2007. On May 15, 2007, he was discharged from NDOC incarceration. Since that time, the plaintiff has failed to file any motions or responses with the court, and has failed to notify the court of a valid forwarding address. Mail was returned as undeliverable to him on May 29, 2007, and on July 13, 2007.
Local Rule of Special Proceedings and Appeals 2-2 states that the plaintiff shall immediately file with the court written notification of any change of address, and failure to do so may result in dismissal of the action with prejudice.
Upon consideration of Magistrate Judge Johnston's report and recommendations, the defendants' motions, the plaintiff's failure to comply with the local rules, and the factors set forth in Ghazali v. Moran,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Magistrate Judge Johnston's report and recommendations (#26) are AFFIRMED in their entirety.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendants' motions to dismiss (## 20, 23), be and the same hereby are, GRANTED, and that the plaintiff's complaint (# 5), be and the same hereby is, DISMISSED with prejudice.