Opinion
CV-22-1490-PHX-DJH (JFM)
11-15-2023
Ashley Winters, Plaintiff v. City of Phoenix, et al., Defendants.
REPORT & RECOMMENDATION
JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE
This matter is before the undersigned magistrate judge on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of this matter is dispositive of claims or defenses, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
A. DISCUSSION
1. Background
On September 7, 2023, the Clerk forwarded to Plaintiff at her address of record a conformed copy of her proffered amended complaint (Doc. 55). That mail was returned undeliverable (Doc. 65). On September 26, 2023 Plaintiff was given through October 10, 2023 to either file a notice of change of address providing her current address or show cause why this case should not be dismissed for failure to prosecute. (Order 9/26/23, Doc. 67.) Plaintiff did not comply.
On October 23, 2023, the Court gave Plaintiff an additional opportunity to comply, and in default thereof set a telephonic hearing on the order to show cause (Doc. 67). Plaintiff was instructed that if she did not comply by October 30, 2023, then she was required to appear at the OSC hearing. Plaintiff was cautioned that the Court would likely require Plaintiff to pay Defendants their expenses (including attorneys fees) in having to appear at such hearing. In addition, Plaintiff was warned that failure to show cause for failure to comply would likely result in the dismissal of this action. The telephonic OSC hearing was set for Thursday, November 2, 2023. (Order 10/23/23, Doc. 80.)
Petitioner did not comply with the original order by the October 30 deadline (or thereafter), and failed to appear for the order to show cause hearing on November 2, 2023. (See M.E. 11/2/23, Doc. 81.)
2. Whether Sanctions are Appropriate
Federal Rule of Civil Procedure 16(f)(1) provides that “the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party... (C) fails to obey a scheduling or other pretrial order.” Those sanctions include sanctions directed at claims and defenses, pleadings, stays, dismissal, default judgment, or contempt.
Additionally, Federal Rule of Civil Procedure 41(b) authorizes dismissal for a plaintiff's failure to comply with a court order. In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the Supreme Court recognized that a federal district court has the inherent power to dismiss a case sua sponte for such violations, even though the language of Rule 41(b) of the Federal Rules of Civil Procedure appears to require a motion from a party.
Here, Plaintiff has failed to comply with two separate orders, the one issued September 26, 2023, and the second issued October 23, 2023, and has failed to appear for the telephonic OSC hearing. These were pretrial orders within the meaning of Rule 16(f).
Plaintiff's failure to comply must be seen as willful. Although mail had been returned when sent to her address of record, triggering the orders, additional mailings by the Clerk have not been returned. Plaintiff's recent filings reflect the same address as that of record. Thus, it must be assumed that Plaintiff has received the Court's recent orders. Moreover, Plaintiff has demonstrated her ability to comply by filing, in the interim, a Moton to Extend Time to Amend (Doc. 71), Motion to Amend (Doc. 72), Response to Motion for Judgment on the Pleadings (Doc. 75), Motion for Leave to File Non-Electronic Exhibits (Doc. 76), and Amended Complaint (Doc. 83).
3. What Sanctions are Appropriate
At the hearing, Defendants requested a grant of their motion for default judgment as a sanction. (See M.E. 11/2/23, Doc. 81.) Given the willfulness of Plaintiff's actions, and for the following reasons, the undersigned concludes that a dismissal without prejudice is the appropriate sanction.
When determining whether dismissal of an action is an appropriate sanction, a district court must consider: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Valley Eng'rs Inc. v. Elec. Eng'g Co., 158 F.3d 1051, 1057 (9th Cir. 1998) (alterations omitted) (quoting Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). When a party violates a court order, the first two factors weigh in favor of sanctions and the fourth factor weighs against case-dispositive sanctions, so the third and fifth factors are decisive. Id.
With regard to the third factor (prejudice), Plaintiff's failures to comply have required Defendants to labor (like the court) on the assumption of the continuing viability of Plaintiff's address. And, Defendants have had to appear needlessly at an OSC hearing for which Plaintiff did not appear. This factor weighs lightly in favor of dismissal.
With regard to the fifth factor (less drastic sanctions), the limitation of evidence or striking of claims or pleadings (given that this action arises out of a single incident, and concerns only a single defendant) would effectively be more drastic than a dismissal without prejudice. Similarly, a grant of the motion for judgment on the pleadings (as requested by Defendants) or other default judgment would be more drastic. Monetary sanctions are demonstrably ineffective. The Court's second order raised the specter of requiring Plaintiff to pay defendants' expenses for appearing at the OSC hearing, and still Plaintiff did not comply. Moreover, Plaintiff is appearing in forma pauperis. A stay of proceedings is unlikely to alter Plaintiff's conduct. Plaintiff has repeatedly engaged in substantial delay in these proceedings, taking some four and half months to return service packets (see Order 3/22/23, Doc. 18), and filing amended pleadings long after deadlines set when leave to amend was granted (see Order 11/14/23, Doc. 84), where the information necessary to an amendment had been in her possession for months. Given the apparent willfulness of Plaintiff's conduct, a finding of contempt is unlikely to be effective. Associated monetary sanctions are not likely to be effective and other forms of sanctions for contempt face the same hurdles of either being ineffective or more drastic. This factor weighs heavily in favor of dismissal.
The first two factors (expeditiousness and docket management) weigh heavily in favor of dismissal, the third factor (prejudice) lightly in favor, and the fifth factor (alternatives) heavily in favor. As always, the fourth (merits) weighs heavily against dismissal. In total, the undersigned finds that the factors favoring dismissal outweigh those against.
Thus, the undersigned concludes that the least drastic, but still effective, sanction is a dismissal without prejudice.
4. Award of Related Expenses
Rule 16(f)(2) requires the Court to “ order the party...to pay the reasonable expenses-including attorney's fees-incurred because of any noncompliance.. .unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.” Such order is to be “[i]nstead of or in addition to any other sanction.”
Plaintiff has failed to offer any justification for her failure, or any reason that an award of expenses would be unjust. The undersigned find no reason.
Thus Plaintiff should be ordered to pay Defendants their expenses, including attorney's fees, incurred in appearing for the OSC hearing on November 2, 2023, and (if deemed appropriate in light of any objection to this Report and Recommendation) in responding to any such objection.
B. EFFECT OF RECOMMENDATION
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.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
C. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED:
(A) The reference of this case to the magistrate judge be WITHDRAWN.
(B) Defendants' Motion for Judgment on the Pleadings (Doc. 63) be DENIED WITHOUT PREJUDICE.
(C) This action be DISMISSED WITHOUT PREJUDICE pursuant to Rules 16(f), 37(b)(v), and 41(b).
(D) Plaintiff be ordered to pay Defendants their expenses (including attorney's fees) incurred in appearing at the order to show cause hearing, and (if appropriate) in responding to any objection to this Report and Recommendation.
(E) Defendants be given 14 days from the Court's order on this Report and Recommendation to file their application for such expenses.