United States District Court, D. Arizona
THE
HONORABLE STEPHEN M. McNAMEE, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
On July
12, 2017, Plaintiff filed a Complaint alleging that
Defendants unlawfully failed to pay overtime wages in
accordance with the Fair Labor Standards Act and A.R.S.§
§ 23-351, 353, and 355. (Doc. 1). Defendants were served
and failed to answer or timely respond. (Docs. 7-12). In
response to the Court's Order for Plaintiff to show cause
why the Complaint should not be dismissed for failure to
prosecute, an Application for Entry of Default was filed on
October 9, 2017, and the Clerk of Court's Entry of
Default was filed on October 10, 2017. (Docs. 13-15). The
Court set a Default Damages Hearing (Doc. 16), which
Plaintiff moved to vacate (Doc. 17). The Court vacated the
Default Damages Hearing and ordered Plaintiff to file his
proposed Motion for Entering a Default Judgment with
supporting affidavits no later than December 27, 2017. (Doc.
18).
On
January 16, 2018, the Court issued an Order allowing
Plaintiff's counsel to withdraw and granting Plaintiff
additional time up to February 21, 2018 within which to file
a Motion for Entering Default Judgment with supporting
affidavits. (Doc. 20 at 2). The Court further advised
Plaintiff that “[f]ailure to timely file the Motion for
Entering Default Judgment shall result in dismissal of the
case for failure to prosecute.” (Id.). The
Court presumes that Plaintiff received the Order as it was
mailed to his address of record as provided by his counsel
and was not returned to the Court. As of the date of this
Report and Recommendation, Plaintiff has not filed the Motion
for Entering Default Judgment with supporting affidavits as
ordered.
Plaintiff
has the general duty to prosecute this 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.”). Plaintiff's failure
to file a Motion for Entering Default Judgment with
supporting affidavits as ordered by the Court constitutes
failure to prosecute.
Federal
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.
In
determining whether Plaintiff's 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).
Here,
the first, second, and third factors favor dismissal of this
case. Plaintiff's failure to abide by the Court's
Order (Doc. 20) prevents the case from proceeding in the
foreseeable future. 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 an adjudication upon the
merits “[u]nless the dismissal order states
otherwise.” In this case, the undersigned finds that a
dismissal with prejudice would be unnecessarily harsh. The
undersigned therefore recommends that this action be
dismissed without prejudice pursuant to Federal Rule of Civil
Procedure 41(b).
For the
above reasons, IT IS RECOMMENDED that the
Court dismiss the Complaint (Doc. 1) without prejudice for
failure to prosecute.
This
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Fed. R. App. P. 4(a)(1) should not be filed until
entry of the District Court's judgment. The parties shall
have fourteen days from the date of service of a copy of this
Report and Recommendation within which to file specific
written objections with the Court. See 28 U.S.C.
ยง 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties
have fourteen days within which to file a response to the
objections. Failure to file timely objections to the Report
and Recommendation may result in the acceptance of the Report
and Recommendation by the District Court without further
review. Failure to file timely objections to any factual
determinations of the Magistrate Judge may be considered a
waiver of a party's right to appellate review of the
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