United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. Bowman United States Magistrate Judge
Magistrate Judge recommends that the District Court dismiss
this action for failure to prosecute or failure to comply
with this court's orders pursuant to Fed.R.Civ.P. 41(b).
plaintiff, Morales, claims that he “suffered an injury
after tripping and falling over a curb at the entrance to
Defendants' Resort.” (Doc. 5, p. 5) He filed his
original complaint in state court in June of 2017. (Doc. 5,
p. 4) The defendant, Omni Hotels Management Corporation,
removed the action on September 29, 2017, based on diversity
jurisdiction. (Doc. 1)
court set a scheduling conference for December 12, 2017.
(Doc. 13) It instructed the parties to prepare and submit a
joint report prior to the conference. Id. The
plaintiff, Morales, failed to respond to the defendant's
invitations to participate in preparing the joint report.
(Doc. 28, p. 2)
conference on December 12, 2017, Morales appeared pro
se and counsel for the defendant, Omni Hotels Management
Corporation (Omni), appeared telephonically. (Doc. 24)
Morales explained he was trying to retain a new attorney.
(Doc. 24) The court continued the scheduling conference until
January 30, 2018. Id. The court instructed the
parties to get together in the interim and submit a joint
report. Id. Morales was instructed to disclose his
medical records and submit his responses to Omni's
outstanding discovery requests by January 30, 2018.
court held a second scheduling conference on January 30,
2018. (Doc. 26) Counsel for Omni appeared telephonically;
Morales did not appear. (Doc. 26) Morales did not respond to
Omni's invitations to participate in preparing a joint
report prior to the conference. (Doc. 28, p. 2) He did not
comply with the court's orders regarding discovery. (Doc.
28, p. 2) He has not contacted chambers to explain his
February 1, 2018, this court issued an order to show cause
why this action should not be dismissed for failure to
prosecute or for failure to comply with this court's
orders. (Doc. 27) The court warned Morales that if he failed
to file a timely response, the action could be dismissed
without further notice. Id. Morales did not file a
timely response. Id.
41(b) reads in pertinent part as follows:
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.
Fed.R.Civ.P. See also Link v. Wabash R. Co., 370
U.S. 626, 630, 82 S.Ct. 1386, 1389 (1962) (The court may
dismiss an action pursuant to Rule 41(b) sua
case, the plaintiff has not complied with the court's
orders to appear at a scheduling conference, file a joint
report, provide discovery, or file a response to the
court's order to show cause. Accordingly, this court may
dismiss the case pursuant to Fed.R.Civ.P. 41(b). Ferdik
v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.
dismissing an action, however, the court is required to weigh
several 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.” Ghazali v. Moran, 46 F.3d
52, 53 (9th Cir.1995). “The first two of
these factors favor the imposition of sanctions in most
cases, while the fourth cuts against a default or dismissal
sanction.” Aguado v. First Magnus Fin. Corp.,
2009 WL 4058173, at *1 (D. Ariz. 2009). “Thus the key
factors are prejudice and availability of lesser
balancing the factors, the court finds that the action should
be dismissed. The plaintiff does not appear interested in
moving this case forward. In fact, he seems to be engaged in
a continuing pattern of ignoring this court's orders. The
defendant notes that Morales has a history of trespassing on
its hotel property both before and after the alleged
incident. (Doc. 28-1, p. 3) The defendant has doubts as to
whether the ...