Opinion
CV-22-01087-PHX-DWL (DMF)
10-13-2022
John Randall Ottley, et al., Plaintiffs, v. Arizona Game and Fish Commission, et al., Defendants.
REPORT AND RECOMMENDATION
Deborah M Fine, United States Magistrate Judge
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
This matter is on referral to the undersigned for pretrial proceedings pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 5 at 2)
Plaintiffs John Randall Ottley (“Plaintiff Ottley”), Anthony Covell (“Plaintiff Covell”), and James Virgil Harvey (“Plaintiff Harvey”) initiated this action in June 2022. (Doc. 1) On July 18, 2022, July 26, 2022, and October 6, 2022, filings sent from this Court to Plaintiff Covell were returned as undeliverable. (Docs. 7, 8, 10) Plaintiff Covell has failed to timely notify the Court of Plaintiff Covell's change of address.
For the reasons set forth below, it is recommended that Plaintiff Covell's claims in this matter be dismissed without prejudice for Plaintiff Covell's failure to notify the Court of Plaintiff Covell's change of address and failure to comply with LRCiv 83.3(d).
I. PROCEDURAL HISTORY AND POSTURE
On June 27, 2022, Plaintiffs Ottley, Covell, and Harvey (collectively, “Plaintiffs”) filed a pro se Complaint and paid the filing fee. (Doc. 1) Each Plaintiff signed the Complaint. (Id. at 11) In their Complaint, Plaintiffs name two Defendants, Arizona Game and Fish Commission and Tyler Raspillar, and allege six counts for relief regarding events that occurred between May 2018 and June 2022. (Id. at 1, 3-10) In Count III, Plaintiff Covell and Plaintiff Ottley allege that Defendant Raspillar seized property and caused injury to Plaintiff Covell and Plaintiff Ottley. (Id. at 7-8) On page 2 of the Complaint, Plaintiff Covell states that he “brings this complaint for violations of his individual and associational rights under the First, Fourth, Fifth, Sixth, Ninth, and Fourteenth amendments to the United States Constitution, in violation of 42 U.S.C.1983, 1983 [ sic ], 1986. Arizona Constitution Art. 2 sec 8.” (Id. at 2) However, Plaintiff Covell is not otherwise referred to in Counts I, II, IV, V, or VI. (See id. at 4-10) Also on June 27, 2022, Plaintiffs submitted proposed summonses. (Doc. 2)
On June 27, 2022, this Court sent to Plaintiffs a Notice of Assignment (Doc. 3) and a Notice to Self-Represented Litigant. (Doc. 4) The Notice of Assignment stated that the litigant “must file a Notice of Change of Address if [the litigant's] address changes” and that failure to comply with such rule “will result in your document being STRICKEN and/or your case being DISMISSED[.]” (Doc. 3 at 2) Further, the Notice to SelfRepresented Litigant stated that the litigant “must immediately notify the Court of any change of address. Local Rule of Civil Procedure 83.3(d). ” (Id. at 6) On July 18, 2022, a mailed copy of the Court's Notice of Assignment and Notice to Self-Represented Litigant were returned as undeliverable as to Plaintiff Covell. (Doc. 7) The returned envelope did not state a reason for the returned mail. (Id.)
In the Court's Service Order filed July 19, 2022, the Court instructed the Clerk of Court to issue Plaintiffs' proposed summonses (Doc. 2) if properly completed. (Doc. 5 at 2) The Court ordered Plaintiffs to serve Defendants or seek a waiver of service from Defendants. (Doc. 5 at 1-2) On July 19, 2022, Plaintiffs' proposed summonses were issued, pursuant to the Court's Order. (Doc. 6)
On July 26, 2022, a mailed copy of the Court's Service Order was returned as undeliverable as to Plaintiff Covell. (Doc. 8) The returned envelope stated the reason for the returned mail as “not deliverable as addressed” and “unable to forward[.]” (Id.)
On September 29, 2022, the Court issued an Order to Show Cause as to why Plaintiffs' lawsuit against Defendants should not be dismissed for failure to timely complete service upon Defendants. (Doc. 9) The Court warned Plaintiff that “a district court may dismiss an action for failure to comply with any order of the Court).” (Id. at 2) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
The Court's Order to Show Cause is not at issue in this Report and Recommendation.
On October 6, 2022, a mailed copy of the Court's Order to Show Cause was returned as undeliverable as to Plaintiff Covell. (Doc. 10) The returned envelope stated the reason for the returned mail as “not deliverable as addressed” and “unable to forward[.]” (Id.)
II. FAILURE TO NOTIFY THE COURT OF CHANGE OF ADDRESS
The issue before the Court is whether to dismiss Plaintiff Covell's claims in this matter for Plaintiff Covell's failure to notify the Court of Plaintiff Covell's change of address as required.
In the absence of a motion to dismiss from a party, the United States Supreme Court has recognized that a district court has the inherent power to dismiss a claim sua sponte for lack of prosecution. Link v. Wabash R. Co., 370 U.S. 626, 629-33 (1962); c.f. Fed.R.Civ.P. 41(b) (“If the plaintiff fails to prosecute or comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.”). This inherent power is “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. at 630-31. It is Plaintiff Covell's duty to prosecute his case. Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). It is also Plaintiff Covell's duty to “keep[] the Court apprised of any changes in his mailing address[,]” and failure to do so constitutes failure to prosecute. Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). A court need not provide notice to a plaintiff before dismissal. Link, 370 U.S. at 632.
Further, the Rules of Practice of the United States District Court, District of Arizona (“LRCiv”) 83.3(d) requires that:
[a]n attorney or unrepresented party must file a notice of a name or address change, and an attorney must also file a notice of a change of firm name or e-mail address. The notice must be filed no later than fourteen (14) days before the effective date of the change, except that an unrepresented party who is incarcerated must submit a notice within seven (7) days after the effective date of the change. A separate notice must be filed in each active case.
To determine whether a plaintiff's failure to prosecute warrants dismissal of a claim, a 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 the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). A “district court abuses its discretion if it imposes a sanction of dismissal without first considering the impact of the sanction and the adequacy of less drastic sanctions.” United States v. National Medical Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, “a district court's warning to a party that his failure to obey the court's order will result in dismissal can satisfy the consideration of alternatives requirement.” Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (internal citations omitted).
Here, the first and second factors weigh in favor of dismissal. Dismissal would allow the Court to manage its docket and would satisfy the “public's interest in expeditious resolution” of Plaintiff's claim. Id. If Plaintiff Covell does not notify the Court of his new address or comply with Court orders, the resolution of Plaintiff Covell's claims will be delayed.
As for the third factor, it appears that Defendants have not received notice of Plaintiffs' lawsuit. Defendants therefore have not received notice of Plaintiff Covell's claims. Although the loss of “a quick victory” is not prejudicial, Bateman v. United States Postal Service, 231 F.3d 1220, 1225 (9th Cir. 2000), if Plaintiff Covell's claims are dismissed and then later refiled, Defendants would have to defend against Plaintiff Covell's claims regarding events that occurred in May 2018, which is already over four years ago. (Doc. 1 at 5-10) Plaintiff Covell is referenced in Count III of the Complaint. (Id. at 7-8) Count III of the Complaint also appears to be brought by Plaintiff Ottley. (Id.) Defendants must still litigate against Count III of the Complaint insofar as Count III is brought by Plaintiff Ottley, as well as Counts I, II, IV, V, and VI of the Complaint brought by Plaintiff Ottley and Plaintiff Harvey. (See id. at 4-10) If Plaintiff Covell's claims are not dismissed, Defendants would suffer delay in litigating each count of the Complaint and proceeding to trial. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citingMalone v. United States Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987)) (prejudice impairs “defendant's ability to proceed to trial or threaten[s] to interfere with the rightful decision of the case”). On the other hand, if Plaintiff Covell's claims are dismissed without prejudice and later refiled, then Defendants may have to relitigate the same issues already litigated regarding Plaintiff Ottley in this matter. The third factor does not clearly support dismissal, but it does not weigh strongly against dismissal.
The fourth factor does not support dismissal, as dismissal of Plaintiff Covell's claims at this stage would not support “the public policy favoring disposition of cases on their merits[.]” Henderson, 779 F.2d at 1423.
Finally, as to the fifth factor, alternative sanctions to dismissal. Plaintiff Covell's lack of filings since the June 27, 2022, filing of the Complaint, as well as mail returned three times to the Court as undeliverable, suggest that “[a]n order to show cause why dismissal is not warranted or an order imposing sanctions would only find itself taking a round trip tour through the United States mail.” Carey, 856 F.2d at 1441 (where court could not contact plaintiff, dismissal and not lesser sanction was appropriate). Plaintiff Covell has not provided the Court with an updated, accurate address where Plaintiff Covell could receive mail. It is not the Court's duty to determine Plaintiff Covell's new mailing address. See id. Plaintiff Covell has had over three months since the filing of his June 27, 2022, Complaint to notify the Court of his current address but has not done so. Plaintiff Covell has not made any filings in this matter since June 27, 2022.
Further, the Court has mailed warnings to Plaintiff Covell about the possibility of dismissal of Plaintiff Covell's lawsuit. The Notice to Self-Represented Litigant stated that each litigant “must immediately notify the Court of any change of address. Local Rule of Civil Procedure 83.3(d).” (Doc. 4 at 6) The Court's Notice of Assignment stated that each litigant “must file a Notice of Change of Address if [the litigant's] address changes” and that failure to comply with such rule “will result in [the litigant's] document being STRICKEN and/or [the litigant's] case being DISMISSED[.]” (Doc. 3 at 2) The Court also warned that “a district court may dismiss an action for failure to comply with any order of the Court.” (Doc. 9 at 2) (citing Ferdik, 963 F.2d at 1260-61). Despite the applicable rule and the Court's attempts to provide Plaintiff with warnings about failure to update his address, Plaintiff has not apprised the Court of his current address.
Although a dismissal for failure to prosecute operates as an adjudication on the merits “[u]nless the dismissal order states otherwise[,]” Fed.R.Civ.P. 41(b), a dismissal with prejudice would be unnecessarily harsh under the circumstances before the Court. Therefore, the Court recommends that Plaintiff Covell's claims be dismissed without prejudice. See, e.g., Garcia v. Shepherd, 2022 WL 271973, at *3 (D. Ariz. Jan. 4, 2022) (recommending dismissal without prejudice for failure to update address); Scroggins v. Fuller-Espinoza, 2022 WL 1558485, at *2 (D. Ariz. Apr. 21, 2022) (same).
Because Plaintiff Covell has failed to prosecute his lawsuit and failed to comply with LRCiv 83.3(d), the Court may use its discretion to dismiss Plaintiff Covell's claims without prejudice and it is recommended on this record that the Court do so. See Link, 370 U.S. at 630-31.
III. CONCLUSION
Because Plaintiff Covell has not notified the Court of his change of address, it is recommended that Plaintiff Covell's claims in this matter be dismissed without prejudice for failure to prosecute and failure to comply with LRCiv 83.3(d).
Accordingly, IT IS RECOMMENDED that Plaintiff Covell's claims in this matter be dismissed without prejudice for failure to prosecute and failure to comply with LRCiv 83.3(d).
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) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen 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); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely 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 to file timely objections to any factual determination of the Magistrate Judge may 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 Fed.R.Civ.P. 72.