United States District Court, D. Arizona
Neil V. Wake United States District Judge
For the reasons that follow, this action will be dismissed under Federal Rule of Civil Procedure 41(b) for Plaintiff’s failure to prosecute and failure to comply with court orders. As a result, Defendant’s Motion to Dismiss (Doc. 4) will be denied as moot.
Plaintiff and Defendant are employees of the Phoenix VA Health Care System. On July 16, 2015, Plaintiff filed a petition in state Justice Court seeking an injunction against Defendant for alleged harassment, including threats of violence, pursuant to A.R.S. § 12-1809. Later that day the Justice Court entered an injunction ordering Defendant to stay away from Plaintiff’s residence and workplace. Plaintiff’s place of work is the same as Defendant’s place of work, so the injunction effectively ordered Defendant off his job. The Justice Court entered the injunction without giving Defendant notice or an opportunity to be heard and without explaining why no notice or opportunity for hearing was given. On August 6, Defendant removed the proceeding to this Court.
On August 7, this Court ordered Plaintiff to show cause at a hearing on August 12 why the injunction should not be vacated as “legally deficient on the pleadings.” (Doc. 3 at 3.) The Court observed that “the ex parte injunction was entered without satisfaction of all the requirements of the Arizona statute” and apparently deprived Defendant of “due process of law.” (Id. at 1-2.) Specifically, the Court noted that (1) Plaintiff’s petition failed to describe the alleged harassment with the specificity required by A.R.S. §§ 12-1809(C)(3) and 12-1809(S), (2) the Justice Court failed to identify any efforts made by Plaintiff to give advance notice to Defendant or reasons why such notice should not have been given, as required by A.R.S. § 12-1809(E), and (3) the injunction deprived Defendant of his employment without providing him notice or opportunity to be heard and without explaining this lack of notice and opportunity for hearing, in apparent violation of the Fourteenth Amendment Due Process Clause. (Id. at 1-2.)
On August 10, Defendant moved to vacate the injunction and dismiss the case for lack of subject-matter jurisdiction. (Doc. 4.)
On August 12, Plaintiff failed to appear at the show cause hearing as ordered. As a result, the Court issued an order later that day vacating the injunction in light of the deficiencies previously noted. (Doc. 6 at 1-2.) The order further stated “it appears the deficiencies cannot be cured by an amended pleading” and “Plaintiff will be given an opportunity to amend his complaint, failing which this action will be terminated.” (Id. at 2.) Accordingly, the Court ordered that “by August 27, 2015, Plaintiff either (1) show cause why this action should not be dismissed with prejudice for failure to state a claim upon which relief can be granted or (2) file an amended complaint that does state a claim upon which relief can be granted.” (Id. at 2-3.)
To date, Plaintiff has filed nothing in response to the Court’s August 12 order, Defendant’s motion to dismiss, or anything else in this case.
Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss an action for plaintiff’s failure to prosecute or failure to comply with a court order. See, e.g., Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss sua sponte under Rule 41(b)). In determining whether to dismiss, courts must weigh 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 alternatives. Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Here, all these factors weigh in favor of dismissal.
A. Public’s interest in expeditious resolution of litigation
Approximately seven months have passed since Defendant’s motion to dismiss (Doc. 4) and the Court’s order that Plaintiff either show cause why this action should not be dismissed or file an amended complaint (Doc. 6). Plaintiff has not responded to the motion or the order. Nor did Plaintiff appear at the August 12 hearing as required by the Court’s initial order to show cause (Doc. 3). Plaintiff’s complete lack of involvement in this case belies any hope that continued proceedings would lead to an expeditious resolution. The public’s interest in expeditious resolution strongly favors dismissal.
B. Court’s need to manage its docket
The Court’s August 12 order gave a specific deadline by which Plaintiff must either show cause why this action should not be dismissed or file an amended complaint: August 27, 2015. (Doc. 6 at 2-3.) That deadline has long passed. Courts must be able to enforce their deadlines. In addition, Plaintiff’s total radio silence since this case was removed indicates he has abandoned his claim. Any further time spent on this case would use precious judicial ...