Opinion
CV 19-534 TUC LAB
04-19-2022
Adana Krouses, a married woman, Plaintiff, v. United States of America; et al., Defendants.
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, UNITED STATES MAGISTRATE JUDGE.
The Magistrate Judge recommends that the District Court dismiss this action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) and LRCiv 41.1.
This Report and Recommendation is directed to the designee of the Chief United States District Judge pursuant to General Order 21-25.
The plaintiff, Adana Krouses, claims that her constitutional rights were violated by customs and border protection agents when she entered the United States from Mexico at the DeConcini Port of Entry in Nogales, Arizona on March 29, 2018. (Doc. 1) She filed her complaint on November 7, 2019. (Doc. 1) Krouses was originally represented by counsel, but her counsel withdrew in April of 2020. (Doc. 17) Krouses attempted to find substitute counsel, but she was unsuccessful. She has been proceeding pro se since February of 2021.
Krouses's last filing was on July 19, 2021. (Doc. 30) On January 24, 2022, this court issued Krouses an Order to Show Cause why this action should not be dismissed for failure to prosecute. (Doc. 31) The Order to Show Cause was mailed to Krouses, but it was returned as undeliverable. (Doc. 32) The court tried to telephone Krouses on March 1, 2022, but there was no answer, and an automated voice stated that, “The mailbox is full.” The court tried to telephone Krouses again on March 29, 2022, but received the same voice message.
Discussion
Rule 41(b) reads in pertinent part as follows:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.Fed.R.Civ.P. See also Link v. Wabash R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 1389 (1962) (The court may dismiss an action pursuant to Rule 41(b) sua sponte) Local Rule 41.1 states in pertinent part that, “cases which have had neither proceedings nor pleadings, notices, or other documents filed for six (6) or more months may be dismissed by the Court for want of prosecution.”
In this case, there has been nothing filed by the plaintiff for eight months. The plaintiff has apparently moved and the court has no way of contacting her. The action may be dismissed for failure to prosecute.
Before dismissing an action, however, the 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 on their merits; and (5) the availability of less drastic sanctions.” Ghazali v. Moran, 46 F.3d 52, 53 (9 Cir.1995). “The first two of these factors favor the imposition of sanctions in most cases, while the fourth cuts against a default or dismissal sanction.” Aguado v. First Magnus Fin. Corp., 2009 WL 4058173, at *1 (D. Ariz. 2009). “Thus the key factors are prejudice and availability of lesser sanctions.” Id.
Cir. 1988) (“A party, not the district court, bears the burden of keeping the court apprised of any changes in [her] mailing address.”). The court considered the “less drastic” sanction of dismissing the action without prejudice, but the incident that precipitated this action occurred in March of 2018. It appears, therefore, that dismissal without prejudice would not be any less drastic.
Upon balancing the factors, the court finds that the action should be dismissed. The plaintiff seems either unable or unwilling to move this case forward. She was specifically instructed that the court has a program whereby pro se plaintiffs can obtain advice from volunteer attorneys. (Doc. 27) It appears that she met with an attorney in June of 2021, but she has not advanced her case in any appreciable way since then. Moreover, it appears that she has moved, and she has not given the court her new address. It is therefore impossible for the court to provide Krouses with further warnings. See Carey v. King, 856 F.2d 1439, 1441 (9
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, dismiss this action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) and LRCiv 41.1.
Pursuant to 28 U.S.C. § 636(b)(1), any party may file and serve written objections within 14 days after being served with a copy of this report and recommendation. If objections are not timely filed, they may be waived. The Local Rules permit a response to an objection. Reply briefs are not permitted absent permission from the District Court.