Opinion
CV-22-0051-PHX-JJT (JFM)
05-23-2022
Robert Heard, Plaintiff v. Unknown Murray, Defendant.
REPORT & RECOMMENDATION
JAMES F. METCALF, MAGISTRATE JUDGE
A. REPORT AND RECOMMENDATION
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).
B. DISCUSSION
In the Court's Scheduling Order, the parties were ordered to file Individual Case Management Reports by April 11, 2022. (Order 3/21/22, Doc. 8) at 7, ¶ 4.1.) Plaintiff has not filed his report, and on May 6, 2022, the Court gave Plaintiff through May 16, 2022 to file either: (1) his Individual Case Management Report; or (2) a response to the order showing cause why Plaintiff should not be sanctioned under Fed.R.Civ.P. 16(f) and 37(f) or dismissed for failure to prosecute. Plaintiff has done neither.
Defendant obtained an extension (Doc. 13) and filed his ICMR on April 18, 2022 (Doc. 12).
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.
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.
Further, Plaintiff's failure to comply with the Scheduling Order and the Order to Show Cause is a failure to prosecute. See 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).
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 conferences 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 ofconditions 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). These are the same factors to be applied in deciding whether dismissal is an appropriate sanction for a failure to prosecute. Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). “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.” Id. at 656.
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 both 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. Without Plaintiff's participation, Defendants are left to chase Plaintiff to attempt to conduct discovery to defend the case.
The fourth factor, as always, weighs against dismissal. The fifth factor requires the Court to consider whether a less drastic alternative is available, attempted, and has warned. Plaintiff was warned in the Court's 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 respond, coupled with his in forma pauperis status indicates that meaningful sanctions less drastic than dismissal, such as imposition of costs and fees, are not realistically available.
The undersigned finds 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. Therefore, the Complaint and this action should therefore be dismissed without prejudice.
C. 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.”
D. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED the Complaint (Doc. 1) and this action be DISMISSED WITHOUT PREJUDICE.