United States District Court, D. Arizona
S. WILLETT, UNITED STATES MAGISTRATE JUDGE.
before the Court is Defendants' Motion to Dismiss for
Failure to Prosecute (“Motion to Dismiss”) (Doc.
65). No response has been filed and the time to do so has
passed. See LRCiv 7.2(c) (providing that a response
must be filed within fourteen days after service of the
motion). The matter is deemed submitted for decision. The
parties have consented to proceeding before a Magistrate
Judge pursuant to Fed.R.Civ.P. 73 and 28 U.S.C.§ 636(c)
(Doc. 23). The Federal Court has jurisdiction pursuant to 28
move to dismiss all claims alleged by Plaintiffs Erik Gomez
and Dan Watson in their Complaint (Doc. 1) filed April 5,
2016 on the basis of failure to prosecute pursuant to
Fed.R.Civ.P. 41(b). On August 14, 2017 Plaintiffs'
counsel filed a Motion to Withdraw as Counsel, stating
“a conflict has developed between Plaintiffs and
counsel has been unsuccessful in receiving the aid needed
from Plaintiff[s] to fully prosecute their claims.”
(Doc. 46 at 1-2). The Court granted counsels' Motion to
Withdraw as Counsel (Doc. 52). Since that time, Plaintiffs
Erik Gomez and Dan Watson have been unrepresented, and
Defendants have been unable to contact Plaintiffs Gomez and
Watson. In addition, Plaintiffs Gomez and Watson have failed
to respond to all Defendants' discovery requests,
including requests for admission which are now deemed
admitted. See Fed. R. Civ. P. 36(a) (3). Mail to
Plaintiff Gomez has been returned as undeliverable, and his
phone is disconnected.
district court has discretion to adopt local rules. . . .
Those rules have ‘the force of law.'”
Hollingsworth v. Perry, 558 U.S. 183 (2010)
(citation omitted). Hence, both the parties and the Court are
bound by the local rules. LRCiv. 83.3(c) (1) (“Anyone
appearing before the court is bound by these Local
Rules.”); Professional Programs Group v. Department
of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994). A
district court's departure from its local rules is
justified only if the effect is “so slight and
unimportant that the sensible treatment is to overlook
[it].” Id. (internal quotation marks and
filed their Motion to Dismiss (Doc. 65) on December 15, 2017.
Plaintiffs failed to respond. LRCiv 7.2(i) provides that
“if the unrepresented party …does not
…file the required answering memoranda, …such
non-compliance may be deemed a consent to the
…granting of the motion and the Court may dispose of
the motion summarily.” On this basis alone, the Court
summarily may grant Defendants' motion. Ghazali v.
Moran, 46 F.3d 52, 53 (9th Cir. 1995) (failure to comply
with local rules is a proper ground for dismissal).
have the general duty to prosecute their case. See
Fidelity Phila. Trust Co. v. Pioche Mines Consol., Inc.,
587 F.2d 27, 29 (9th Cir. 1978) (“It is a well
established rule that the duty to move a case is on the
plaintiff and not on the defendant or the court.”).
“A party, not the district court, bears the burden of
keeping the court apprised of any changes in his mailing
address.” Carey v. King, 856 F.2d 1439, 1441
(9th Cir. 1988). A plaintiff's failure to keep the Court
informed of his address constitutes a failure to prosecute. A
plaintiff's failure to participate in discovery may also
be deemed a failure to prosecute.
Rule of Civil Procedure 41(b) provides that “if 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,
even though the language of Federal Rule of Civil Procedure
41(b) appears to require a motion from a party. Moreover, in
appropriate circumstances, the Court may dismiss a pleading
for failure to prosecute even without notice or hearing.
Link, 370 U.S. at 633.
determining whether Plaintiffs' failure to prosecute
warrants dismissal of the case, the Court must weigh the
following 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 sanctions.” Carey, 856 F.2d at 1440
(quoting Henderson v. Duncan, 779 F.2d 1421, 1423
(9th Cir. 1986)). “The first two of these factors favor
the imposition of sanctions in most cases, while the fourth
factor cuts against a default or dismissal sanction. Thus the
key factors are prejudice and availability of lesser
sanctions.” Wanderer v. Johnson, 910 F.2d 652,
656 (9th Cir. 1990).
the first, second, and third factors favor dismissal of this
case. Plaintiff Gomez' failure to keep the Court informed
of his current address prevents the case from proceeding in
the foreseeable future. Both Plaintiffs' failure to
participate in properly noticed discovery also prevents the
case from proceeding. The fourth factor, as always, weighs
against dismissal. The fifth factor requires the Court to
consider whether a less drastic alternative is available. The
undersigned finds that only one less drastic sanction is
realistically available. Rule 41(b) provides that a dismissal
for failure to prosecute operates as adjudication upon the
merits “[u]nless the dismissal order states
otherwise.” The Court may dismiss the case without
case, the Court finds that a dismissal with prejudice would
not be unnecessarily harsh as requests for admissions now
deemed admitted establish that Plaintiffs cannot meet their
burden of proof in the underlying claims alleged. Plaintiffs
Gomez and Mr. Watson can no longer contest that they were
paid all amounts owed while employed by Defendants.
reasons set forth herein, IT IS ORDERED
granting Defendants' Motion to Dismiss (Doc. 65). The
claims of Plaintiffs Gomez and Watson are dismissed with
IS FURTHER ORDERED that the Clerk of Court ...