Opinion
CV-23-00162-TUC-JCH
07-25-2024
Sergio Rodriguez-Robles, Petitioner, v. Merrick Garland, Respondent.
ORDER
John C. Hinderaker, United States District Judge.
In April 2023, the Ninth Circuit Court of Appeals transferred this case to the district court for de novo review after determining that a genuine issue of material fact existed as to Petitioner's citizenship. See Doc. 28.
In May, the Government moved to appoint counsel for Petitioner. See Doc. 32.
In September, the Court appointed counsel. Doc. 38.
In December, counsel moved to withdraw citing a "breakdown in communication" from "lost telephonic contact." Doc. 55 at 1-2.
In January 2024, then-Magistrate Judge Angela M. Martinez denied counsel's motion and ordered counsel to comply with the local rules for withdrawal. See Doc. 57 at 3.
Later that month, counsel again moved to withdraw. Doc. 58. In compliance with the local rules, counsel provided Petitioner's last known phone number and physical address. See id. at 1-2. Petitioner's last known phone number had been disconnected, and his Arizona address was drawn from a G-28 submitted by prior counsel because withdrawing counsel was never given an address for Petitioner. See id. Counsel speculated that Petitioner is in Mexico based on his order of removal, id. at 2, ignoring that the Ninth Circuit put a stay of removal in place when it transferred this case. See Doc. 28 at 1. Counsel further explained that on the one phone call she had with Petitioner shortly after being assigned, Petitioner "made clear" that his former spouse would be the primary point of contact for gathering evidence. Id. at 2. Petitioner's former spouse then "allegedly [became] ill" and ceased communicating with counsel. Id. Counsel briefly re-established contact and asked for Petitioner's contact information or another point of contact but received no reply. See id. After the Court's January order denying the first motion to withdraw, counsel again tried to contact Petitioner by texting his former spouse. Id. Counsel received a read receipt for the text message but no reply. Id. The Government "[took] no position" on the renewed request to withdraw but "continue[d] to believe that appointed representation is in the interest of justice as this case involves a claim to U.S. citizenship." Doc. 59 at 1. The Government stated that successor counsel "is crucial to ensuring fair and just resolution of the case on the merits rather than resolution by procedural default." Id. at 2. But the Government also "request[ed] the Court's guidance concerning how to serve Petitioner[.]" Id.
In February, Judge Martinez granted counsel's motion to withdraw. Doc. 61. Judge Martinez declined to appoint new counsel "because it appears likely that any new counsel will face the same barriers to communication with Petitioner." Id. at 2. Judge Martinez noted that she would consider new counsel if Petitioner established contact with the Court or the Government, but ordered Petitioner to show cause by March 18 why this action should not be dismissed for failure to prosecute. See id. at 2-3.
On March 5, the Government moved to compel Petitioner to participate in discovery. Doc. 62.
Before the Court is Judge Martinez's Report and Recommendation ("R&R"), filed March 27. Doc. 63. Judge Martinez recommends dismissing for failure to prosecute and denying Respondent's Motion to Compel (Doc. 62) as moot. The R&R notes that cases without proceedings for six or more months may be dismissed under the local rules. See id. at 2 (citing LRCiv. 41.1). No objections to the R&R were filed. See generally docket.
A district court reviews objected-to portions of an R&R de novo. 28 U.S.C. § 636(b)(1); see also Fed.R.Civ.P. 72(b); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). Failure to timely object may be considered a waiver of a party's right to de novo consideration of the issues. United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). The advisory committee's notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, "[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation" of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee's note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
After independent review, the Court agrees with Judge Martinez's recommendation and will adopt the R&R in full. This is a disappointing conclusion for this case. Petitioner had a genuine opportunity to establish U.S. citizenship but chose not to use it. He was given the Court's full attention and assigned counsel. Although some aspects of counsel's effort to contact him are wanting, the Court is convinced at this point that Petitioner does not want to proceed. It has been ten months since former counsel briefly spoke to Petitioner after being assigned, see Docs. 39, 58 at 1-2, eight months since Petitioner's last substantive filing through counsel, see Doc. 48, and six months since former counsel told Petitioner's named point of contact that she would withdraw unless communication was reestablished. See Doc. 58 at 2. Although there is a decent likelihood Petitioner has not received any of the Court's orders or filings in this case since shortly after counsel was appointed, that emphasizes rather than mitigates his responsibility. A nine-month silence on such an important matter would-to someone who wanted to proceed-signal the need to get in touch.
Accordingly, IT IS ORDERED ADOPTING IN FULL the R&R (Doc. 63).
IT IS FURTHER ORDERED DENYING AS MOOT Respondent's Motion (Doc. 62).
IT IS FURTHER ORDERED DISMISSING WITHOUT PREJUDICE this action for failure to prosecute. The Clerk of the Court shall close this case.