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Brown v. City of Tucson

United States District Court, D. Arizona

September 25, 2017

Annie Brown; Randy Brown, Plaintiffs,
v.
City of Tucson, Defendant.

          ORDER

          LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE

         Pending before the court is a motion to dismiss pursuant to Fed.R.Civ.P. 41(b), filed by the defendant, City of Tucson, on August 24, 2017. (Doc. 33)

         The plaintiff, Annie Brown, alleges that the Tucson Police failed to properly accommodate her cognitive dysfunction in violation of Title II of the ADA and Section 504 of the Rehabilitation Act. (Doc. 5) She further alleges a violation of her right to equal protection. Id. The defendant, City of Tucson (City), filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on May 20, 2016. (Doc. 12) The plaintiff did not file a responsive brief.

         In the pending motion, the City argues that the case should be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to comply with this court's order setting a deadline for filing a responsive brief.

         Magistrate Judge Bowman presides over this action having received the written consent of all parties. (Doc. 18)

         Background

         On May 20, 2016, the City filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. 12) They argue the amended complaint is “confusing, conclusory and fails to allege a Monell claim.” (Doc. 12)

         Since that date, the plaintiffs have filed a number of motions to extend the time for filing a response. The plaintiffs tried to find legal representation, and then the plaintiff, Randy Brown, underwent medical treatment. The court extended the deadline five times. (Doc. 19); (Doc. 23); (Doc. 25); (Doc. 28); (Doc. 32) The court warned the plaintiffs that “[f]ailure to file a response could result in this action being dismissed without further notice.” (Doc. 21, p. 2)

         The deadline for filing a response was extended to August 21, 2017. (Doc. 32) The plaintiffs, however, did not file a response.

         On August 24, 2017, the City filed the pending motion to dismiss for failure to comply with the court's order to file a timely response pursuant to Fed.R.Civ.P. 41(b), citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1991). (Doc. 33)

         On September 5, 2017, the plaintiff, Randy Brown, filed a response to the motion to dismiss for failure to file a timely response, which the court construed as another motion to extend the deadline for filing a response to the original motion to dismiss. (Doc. 34) This court extended the deadline to September 19, 2017. (Doc. 36) The court notified the plaintiffs that “[n]o further extensions would be granted absent extraordinary circumstances” and that if the plaintiffs failed to file a timely response to the motion to dismiss, the action could be dismissed summarily without further notice. (Doc. 36, p. 2) (citing LRCiv 7.2(i))

The plaintiffs did not file a timely response.
Discussion
Rule 41(b) reads in pertinent part as ...

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