Opinion
6:21-cv-01564-MK
02-24-2022
MARTHA M. MCELROY, Plaintiff, v. ADAM L. MCELROY, Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
Pro Se Plaintiff Martha McElroy brings this action against Defendant Adam McElroy alleging Defendant committed libel, slander, defamation, and perjury pursuant to this Court's diversity jurisdiction moved to proceed in forma pauperis (“IFP”). See EFC Nos. 1, 2. The Court granted Plaintiff's motion to proceed IFP. ECF No. 5. After screening the Complaint as required by 28 U.S.C. § 1915(e)(2), the Court dismissed the Complaint for failing to state a claim with 1 leave to amend. Id. The Order explicitly gave Plaintiff a deadline of January 3, 2022, to file an amended Complaint. Id. On January 31, 2022, the Court issued the following order:
Plaintiff is ordered to Show Cause in Writing by 2/14/2022 why this case should not be dismissed for failure to prosecute. Failure to respond as ordered will result in the dismissal of this matter.ECF No. 6. As of the date of this Findings and Recommendation, Plaintiff has failed to file an amended complaint and failed to respond to the order to show cause. See Docket, Case No. 6:21-cv-01564-MK. For the reasons that follow, this case should be DISMISSED.
STANDARD OF REVIEW
Federal courts possess the undisputed authority to control their dockets and dismiss a case that a plaintiff fails to prosecute. See Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962). Federal Rule of Civil Procedure 41(b) allows for dismissal of an action for failure to prosecute. A dismissal for failure to prosecute may be ordered by the Court upon motion by an adverse party, or upon the Court's own motion. See Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). “[D]ismissal for failure to prosecute is particularly appropriate when such a failure is coupled with disobedience to court orders or a disregard of established rules.” Gierloff v. Ocwen, No. 6:15-cv-01311-MC, 2017 WL 815118, at *1 (D. Or. Mar. 1, 2017) (citation omitted).
In determining whether to dismiss for failure to prosecute or comply with a court order, the court weighs five 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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 2
DISCUSSION
Dismissal is appropriate in this case for at least two reasons. First, Plaintiff's failure to respond to the Court's show cause order itself weighs in favor of dismissing this action. See W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1524 (9th Cir. 1990); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995); Fed.R.Civ.P. Rule 41(b). Second, as discussed in more detail below, the Pagtalunan five-factor test also strongly favors dismissal.
The public's interest in expeditious resolution of litigation and the Court's need to manage its docket favor dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“It is incumbent upon the Court to manage its docket without being subject to routine noncompliance . . . .”). Plaintiff has not participated in this lawsuit since filing the lawsuit in October 2021, failed to file an amended complaint within the time allotted, and he failed to respond the Court's order to show cause. The first two factors thus favor dismissal.
Plaintiff has “offered no clear explanations of what actions he . . . took during the relevant time period[].” Pagtalunan, 291 F.3d at 643. The Court thus finds the third factor weighs in favor of dismissal. Id.
With respect to the availability of less drastic alternatives, the Court has already employed the less drastic alternative of issuing a Show Cause Order. Plaintiff failed to take advantage of this alternative. Accordingly, this factor also weighs in favor of dismissal. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (finding the requirement that court consider less drastic alternatives may be satisfied by warning the litigant that failure to obey court order will result in dismissal).
Finally, “Public policy favors disposition of cases on the merits. Thus, this factor weighs against dismissal, ” Pagtalunan, 291 F.3d at 643, but only weakly because Plaintiff's failure to 3 prosecute or to respond to the Court's order to show cause severely impairs disposition on the merits, see United States ex rel. Berglund v. Boeing Co., 835 F.Supp.2d 1020, 1053-54 (D. Or. 2011). Importantly, the fifth factor alone cannot outweigh the other four. In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994).
In sum, although public policy favors disposition on the merits, Plaintiff's failures to prosecute this case have obstructed the Court's ability to reach the merits. All other factors weigh in favor of dismissal. Accordingly, the district judge should dismiss this action for lack of prosecution and for failure to comply with Court orders.
RECOMMENDATION
For the reasons above, because Plaintiff has failed to follow court orders and failed to prosecute the case, the complaint should be DISMISSED and a judgment should be prepared.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991). 4