Langlois v. Arpaio

Full title: Richard Langlois, Plaintiff, v. Joseph Arpaio, Defendant

Court: United States District Court, D. Arizona

Date published: Apr 24, 2006

No. CV-05-1162-PHX-FJM (LOA) (D. Ariz. Apr. 24, 2006)

Opinion

No. CV-05-1162-PHX-FJM (LOA).

April 24, 2006

REPORT AND RECOMMENDATION

LAWRENCE ANDERSON, Magistrate Judge

This matter arises on the Court's review of the file. Plaintiff commenced this action on April 15, 2005. (document # 1) On January 4, 2006, the Court issued two identical orders granting Plaintiff in forma pauperis status and ordering service on Defendant. (documents # 7, #8) The Court directed Plaintiff to immediately notify the Court in writing of any change in his address and warned Plaintiff that failure to do so could result in dismissal of this action. (documents ## 7, 8) The Court also directed Plaintiff to return a completed service packet for Defendant by January 24, 2006. (document # 8)

Thereafter, on January 17, 2006, the Court received returned mail addressed to Plaintiff marked "undeliverable, released." (document # 9) No alternate address for Plaintiff was located. Plaintiff violated the Court's January 4, 2006 Orders by failing to advise the Court of his new address and failing to return a completed service packet. In view of Plaintiff's failure to comply with court orders, the Court ordered Plaintiff to show cause on or before March 10, 2006 why his action should not be dismissed without prejudice for failure to comply with Court orders. (document # 10)

Plaintiff has not responded to the Court's show-cause order, returned a completed service packet to the Court, or otherwise served Defendant. In view of Plaintiff's failure to comply with Court orders, the Court will consider whether to dismiss this matter.

When considering whether to dismiss an action for failure to comply court orders, the court must consider: "`(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.'" Malone v. United States Postal Service, 833 F.3d 128, 130 (9^th Cir. 1987) (quoting Henderson v. Duncan, 779 F.2d 1421, 1424 (9^th Cir. 1986)).

The first two factors weigh in favor of dismissal. Plaintiff has not taken any action since he filed a motion to proceed in forma pauperis on May 18, 2005. (document # 5) Federal Rule of Civil Procedure 41(b) "obligates plaintiffs to prosecute their claims with reasonable diligence." Petrich v. City of El Cerrito, No. C 92-4087 BAC, 1993 WL 381307, * 2 (N.D.Cal., September 17, 1993) (citing Anderson v. Air West, Inc., 542 F.2d 522 (9^th Cir. 1976)). Plaintiff's failure to advise the Court of his current address and failure to submit a completed service packet has brought this matter to a halt.

Third, Plaintiff bears the burden of persuasion as to the reasonableness of his delay and lack of prejudice to Defendant.Franklin v. Murphy, 745 F.2d 1221, 1232 (9^th Cir. 1984). "In determining whether a defendant has been prejudiced, [the court] examine[s] whether the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case." Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp. (In re Rubin), 769 F.2d 611, 618 (9^th Cir. 1985)). As previously stated, Rule 41(b) requires a plaintiff to prosecute his case with reasonable diligence. Moore v. Telfon Communications Corp., 589 F.2d 959, 967 (9^th Cir. 1978). The Ninth Circuit has held that "`failure to prosecute diligently is sufficient by itself to justify a dismissal.'" Nealey v. Transportacion Maritima Mexicana, 662 F.2d 1275, 1280 (9^th Cir. 1980) (quotingAnderson, 542 F.2d at 524). An unreasonable delay creates a presumption of prejudice to defendant. Nealey, 662 F.2d at 1280 (citation omitted). Here, Plaintiff has not taken any action in this matter May of 2005 and has disregarded court orders. Under these circumstances, the Court finds that Plaintiff has not satisfied his burden of persuasion on the issue of prejudice. Franklin v. Murphy, 745 F.2d 1221, 1232 (9^th Cir. 1984) (finding that district court did not abuse its discretion in dismissing action based on plaintiff's failure to serve process where plaintiff had failed to satisfy his burden of establishing lack of prejudice to defendants.)

Fourth, the Order to Show Cause warned Plaintiff that the Court may dismiss the matter if Plaintiff did not show cause for his failure to comply with court orders. This warning satisfies the Court's obligation to consider less drastic alternatives to dismissal. See Malone, 833 F.2d at 132 (citations omitted).

Finally, the public policy in favor of deciding cases on the merits weighs against dismissal. This factor alone, however, does not outweigh the other factors which support dismissal. Malone, 833 F.2d at 133 n. 2.

After review of the foregoing factors, the Court finds that this matter should be dismissed based on Plaintiff's failure to comply with court orders. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9^th Cir. 1992) (stating that district courts have the authority to "control their dockets and, . . . they may impose sanctions including, where appropriate, . . . dismissal of a case.") (internal quotation omitted).

Accordingly,

IT IS HEREBY RECOMMENDED that this matter be DISMISSED without prejudice for failure to comply with court orders pursuant to FED.R.CIV.P. 41(b).

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. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. 636(b)(1); Rules 72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See, Rule 72, Federal Rules of Civil Procedure.