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Carpenter Crest 401 v. Converti

United States District Court, D. Arizona

July 27, 2017

Carpenter Crest 401, Plaintiff,
v.
Rebekah Converti, et al., Defendants.

          ORDER

          Honorable G. Murray Snow United States District Judge

         Pending before the Court is Plaintiff's Motion for Leave to File First Amended Complaint, which was filed in response to the Court's Order to Show Cause why Plaintiff's claims against John Doe Converti, the fictitious name of Defendant Rebekah Converti's husband, should not be dismissed with prejudice. (Doc. 21.) Plaintiff seeks to amend his Complaint to identify John Doe Converti as Roberto Garcia, and to allow Plaintiff an additional 60 days to effect service on Mr. Garcia. (Id.) For the following reasons, the Court will dismiss John Doe Converti with prejudice for Plaintiff's failure to prosecute, enter full and final judgment in this case, and deny Plaintiff's Motion to Amend as moot.

         I. Background

         On October 6, 2015, over 20 months ago, Plaintiff filed his Complaint in this action. (Doc. 1.) On November 23, 2015, Plaintiff filed a Motion for Alternative Service as to Rebekah Converti and John Doe Converti. (Doc. 7.) In his Motion, Plaintiff sought to have the Court “allow alternative service of the summons and complaint upon Defendant Rebekah Converti, and if married, upon her husband John Doe Converti (collectively ‘Converti').” (Id.) On January 21, 2016, the Court granted Plaintiff's Motion as to Rebekah Converti. (Doc. 8.) However, because Plaintiff indicated that he did not know if Rebekah Converti is married, and failed to identify any steps taken to determine “where, if Ms. Converti is married, her husband resides, ” the Court denied the Motion as to John Doe Converti without prejudice. (Id.)

         On January 27, 2016, Defendants Rebekah Converti and The 2-Acorns, Inc. were served with the Summons and Complaint. (Doc. 11.) On March 7, 2016, after these two Defendants failed to respond to the Complaint, Plaintiff filed a Motion for Entry of Default Judgment against them, which the Court construed as a Motion for Entry of Default. (Docs. 12, 13, 14.) On March 8, 2016, the Clerk entered default against Rebekah Converti and The 2-Acorns, Inc. (Doc. 13.) On April 22, 2016, the Court ordered Plaintiff to submit additional briefing that addressed the factors provided in Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). (Doc. 14.) On May 6, 2016, Plaintiff filed a Motion for Entry of Default Judgment against Defendants Rebekah Converti and The 2-Acorns, Inc. pursuant to Rule 55(b) of the Federal Rules of Civil Procedure. (Doc. 15.) Due to several errors in Plaintiff's damage calculations, however, the Court denied Plaintiff's Motion without prejudice. (Doc. 16.)

         On November 28, 2016, Plaintiff filed an Amended Motion for Entry of Default Judgment against Rebekah Converti and The 2-Acorns, Inc. (Doc. 17.) On March 2, 2017, the Court granted Plaintiff's Motion for Entry of Default Judgment, and, on the same day, the Clerk of Court entered Judgment in favor of Plaintiff and against Defendants Rebekah Converti and The 2-Acorns, Inc. (Docs. 18, 19.) In the Court's Order at Doc. 18 granting the Motion for Default Judgment, the Court stated the following:

Plaintiff also names John Doe Converti, the fictitious name of Rebekah Converti's husband, as a Defendant in this action. (Doc. 1.) Plaintiff claims in the Complaint that it is unknown whether Rebekah Converti is married, and, to date, Plaintiff has not further identified or served this fictitiously-named Defendant. (Id. ¶ 6.) The Court's reference to “Defendant Converti” throughout this Order refers only to Rebekah Converti.

(Doc. 18 at 2, n.2.)

         After the Court entered judgment against the named Defendants, Plaintiff took no action in this case with regard to the John Doe Defendant for weeks. Therefore, on March 20, 2017, the Court ordered that on or before April 3, 2017, Plaintiff shall either move to dismiss John Doe Converti with prejudice, or show cause why this Court should not dismiss this matter with prejudice pursuant to the Federal Rules of Civil Procedure. (Doc. 20.)

         On April 3, 2017, in response to the Court's Order to Show Cause, Plaintiff filed a Motion for Leave to File First Amended Complaint, in which he seeks to file a First Amended Complaint identifying the John Doe Defendant as Roberto Garcia. (Doc. 21.) Plaintiff's counsel claims he “now has reason to believe” Mr. Garcia was the spouse of Rebekah Converti during the relevant time and remains so today. (Id.) Plaintiff further “seeks a court order granting him sixty (60) days to effect service of process on Defendant Garcia, ” asserting that “[s]erving Rebekah Converti was very difficult because she evaded service, and her whereabouts were unknown. We expect that we will encounter the same problems with Defendant Garcia.” Although the Motion claims that “[u]ndersigned counsel diligently searched, through skip traces and other means, to find out Rebekah's marriage status during the relevant time period and her current marriage status, ” the Motion fails to provide any explanation for why Roberto Garcia could not be identified until over 17 months after the Complaint was filed. (Id.) Plaintiff's Motion also does not provide any explanation for failing to timely move to amend to identify Mr. Garcia until after judgment was entered against the named Defendants and the Court issued an Order to Show Cause notifying Plaintiff of his failure to pursue his claims against Rebekah Converti's husband.

         II. Dismissal for Failure to Prosecute Pursuant to Rule 41(b)

         Plaintiff has the general duty to prosecute this case. See Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). Rule 41(b) of the Federal Rules of Civil Procedure provides 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.” 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 failure to prosecute. Moreover, in appropriate circumstances, the Court may dismiss a complaint for failure to prosecute even without notice or hearing. See Id. at 633. Pursuant to Rule 41(b), plaintiffs must prosecute their actions with “reasonable diligence” to avoid dismissal. Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976) (affirming the district court's dismissal for failure to prosecute where the plaintiff failed to serve several defendants for approximately one year).

         Where the identity of a defendant is unknown prior to the filing of a complaint, the plaintiff should be given an opportunity to conduct discovery and identify the unknown defendants, unless it is clear that discovery would not uncover the identities of the unknown defendants. See, e.g., Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). However, the plaintiff must take steps to conduct any necessary discovery and then “proceed with his claims.” Gillespie v. Civilett, 629 F.2d 637, 643 (9th Cir. 1980). See also Petty v. County of Franklin, Ohio, 478 F.3d 341, 345-46 (6th Cir. 2007) (affirming dismissal of doe defendants where Plaintiff failed to amend to name them after an opportunity to identify them through discovery); Garcia v. Clark County, 428 Fed.Appx. 706, 708-09 (9th Cir. Apr. 18, 2011) (“Neither did the district court abuse its discretion when it denied Maria leave to amend the complaint to identify the Doe defendants. Maria had ample opportunity prior to the time defendants moved for summary judgment to conduct reasonable discovery, identify these defendants, and seek leave to amend the complaint to name them properly.”).

         Here, Plaintiff failed to make any effort to amend his Complaint to properly name John Doe Converti within any reasonable time. Plaintiff filed his Complaint in this matter on October 6, 2015. (Doc. 1.) On November 23, 2015, Plaintiff moved for an order from the Court allowing Plaintiff to serve both Rebekah Converti and John Doe Converti by alternative service. (Doc. 7.) In the Motion, Plaintiff asserted that he did not know whether Defendant Rebekah Converti was married, and he did not seek to amend the Complaint to identify Rebekah Converti's husband by name. On January 21, 2016, over 17 months ago, the Court issued an Order granting Plaintiff's request for alternative service as to Defendant Rebekah Converti, but denying without prejudice the request as to John Doe Converti because “[a]lthough Plaintiff . . . named John Doe Converti as a Defendant, Plaintiff indicates that [he] does not know if Ms. Converti is married, and provides no ...


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