Opinion
Case No. 3:15-cv-00530-RFB-CBC
09-30-2019
TODD ROBBEN, Plaintiffs, v. CARSON CITY, et al, Defendants.
ORDER
I. INTRODUCTION
Before the Court is Defendants' Motion to Dismiss Plaintiff's Complaint. ECF No. 63. For the following reasons, the Court grants the motion.
II. BACKGROUND
Plaintiff Todd Robben ("Plaintiff"), a pro se individual, first sued Defendants on October 22, 2015. ECF No.1. In his complaint Plaintiff asserted causes of action for failure to supervise under 42 U.S.C. § 1983, malicious prosecution, First Amendment violations, declaratory relief, Fourth Amendment violations, sixth amendment violations, violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO") Act pursuant to 18 U.S.C. § 1962, false arrest and imprisonment, intentional infliction of emotional distress, civil conspiracy, defamation, abuse of process, negligent hiring, retention, supervision and training, and Eighth Amendment violations stemming from events that occurred between 2012 and 2014 while Plaintiff was in and out of prison in Carson City, Nevada. Id. Defendants answered on December 15, 2015. ECF No. 14. The Court granted Plaintiff's motion to stay the case on April 19, 2016 for sixty days. ECF No. 41. On December 11, 2018, Defendants filed the instant motion to dismiss Plaintiff's complaint pursuant to Rule 41(b) of the Federal Rules of Procedure. Plaintiff opposed the motion on January 2, 2019. ECF No. 66. He also filed suropposition on January 25, 2019. ECF No. 66. Defendants replied on December 28, 2018. ECF No. 64.
III. DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure states that "[i]f 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. 41(b). When considering whether to dismiss for failure to prosecute, district courts weigh the following 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 the disposition of cases on their merits; and (5) the availability of less drastic sanctions." In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994). The Court discusses each of these factors in turn.
a. The Public's Interest in Expeditious Resolution of Litigation
The Ninth Circuit has noted that this factor "always favors dismissal." Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
In this case, Plaintiff filed his complaint on October 2015. The last filing he made prior to Defendants filing their motion was on December 26, 2017, when he filed a notice of change of address. The change of address was to a prison in Tracy, California, where it appears Plaintiff is currently incarcerated. Almost a year, or 350 days, passed between Plaintiff's last filling and the instant motion. The Court finds that this factor favors dismissal.
b. Court's Need to Manage its Docket
"The trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest." Id. Plaintiff's failure to prosecute has allowed this case to languish on the Court's docket for almost a year, and the case began in 2015—four years ago. The Court also finds that this factor weighs in favor of dismissal.
c. Risk of Prejudice to Defendants
The Court must examine prejudice in conjunction with the plaintiff's reason for delay. Pagtalunan, 291 F.3d at 642. When considering the relationship between delay and prejudice, the Court must consider the prejudice that comes in two forms: "loss of evidence and loss of memory by a witness." Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1281 (9th Cir. 1980). "In every case of delay, a district court in the exercise of its discretion should consider whether such losses have occurred and if so, whether they are significant." Id.
In their motion papers, Defendants claim that they are prejudiced because some individuals and witnesses no longer work for Carson City or are no longer in the area. Defendants do not identify these individuals or witnesses. Given the conclusory nature of this assertion, the Court does not find that Defendants have made a showing of actual prejudice. That some witnesses may no longer work for Carson City does not necessarily preclude them from testifying in the case if necessary. But the Court also finds that Plaintiff has given no explanation for his unreasonable delay. Plaintiff, who is pro se, explains in his (untimely) filed opposition that he "is near release from prison" in California, but he does not explain how the fact that he is in prison has prevented him from litigating this case. Plaintiff does not contest the fact that he has continued to prosecute other cases in the Eastern District of California while incarcerated. Thus Plaintiff's delay is unreasonable, and this factor weighs in favor of dismissal.
d. Public Policy Favoring Disposition of Cases on Their Merits
Because public policy favors disposition of cases on the merits, this factor weighs against dismissal. Pagtalunan, 291 F.3d at 643.
e. Availability of Less Drastic Alternatives
Plaintiff is pro se and has not been previously warned by the Court of the possibility of dismissal for failure to prosecute. This factor thus weighs against dismissal. Calloway v. Howard, 651 F. App'x 637, 639 (9th Cir. 2016) (finding alternatives less than immediate dismissal available when district court sua sponte dismissed case despite pro se plaintiff's statements that he was ready for trial).
IV. CONCLUSION
The Court finds that three of the five factors weigh in favor of dismissal. Accordingly, the Court will grant Defendants' motion.
IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss Plaintiff's Complaint (ECF No. 63) is GRANTED. The Court dismisses Plaintiff's Complaint with prejudice.
The Clerk of the Court is instructed to close the case.
DATED: September 30, 2019.
/s/ _________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE