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Gerth v. Unknown Parties

United States District Court, D. Arizona

January 22, 2019

Arthur F Gerth, Plaintiff,
v.
Unknown Parties, et al., Defendants.

          REPORT AND RECOMMENDATION

          Honorable Eileen S. Willett, United States Magistrate Judge.

         TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT COURT JUDGE:

         On April 17, 2018, pro se prisoner Arthur F. Gerth (“Plaintiff”) filed a civil rights First Amended Complaint pursuant to 42 U.S.C. § 1983, alleging excessive force in violation of the Fourteenth Amendment (Doc. 20). The Court screened the First Amended Complaint and ordered Defendants Huffman, Ranzau, and Parker to answer Plaintiff's First Amended Complaint (Doc. 21 at 6). Defendants Huffman and Parker filed their Answer on July 3, 2018 (Doc. 31). Defendant Ranzau filed his Answer on December 19, 2018 (Doc. 57). All issues are joined.

         On October 31, 2018, November 1, 2018, and December 7, 2018, the Court issued Orders (Docs. 50, 51, 55, 60) which were mailed to the Plaintiff at his address as reflected in Plaintiff's Notice of Change of Address filed July 13, 2018 (Doc. 44). Each Order has been returned with the following notations from the United States Postal Service (“USPS”): “Return to Sender/Attempted Not Known/Unable to Forward” (Docs. 52, 53) and “Return to Sender/Not Deliverable as Addressed/Unable to Forward” (Doc. 59, 61). Several returned envelopes indicate in a hand-written notation that the Plaintiff no longer resides at the address of record. (Docs. 52, 53, 59).

         By Order issued on November 27, 2017, the Court advised Plaintiff that “Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Failure to comply may result in dismissal of this action.” (Doc. 11 at 3). Plaintiff is aware of the Court's warning as evidenced by several Notices of Change of Address filed in this matter (Docs. 16, 18, 19, 44). As of the date of the filing of this Order, Plaintiff has not filed an updated Notice of Change of Address as required.

         On December 21, 2018, the Court ordered Plaintiff to show cause no later than January 11, 2019 why this case should not be dismissed for Plaintiff's failure to (i) abide by the Court's Order, and (ii) prosecute the case pursuant to Fed.R.Civ.P. 41(b). As of the date of filing this Report and Recommendation, the Plaintiff has failed to respond to the Court's Order. The time to do so has passed.

         On January 7, 2019, Defendants filed a Notice of Plaintiff's Failure to Appear for Deposition and Motion to Dismiss for Failure to Prosecute (Doc. 62). Defendants indicate that the Plaintiff failed to appear for his deposition scheduled for January 3, 2019. The Notice of Deposition was returned to sender (Doc. 62-1). The time to respond to the Motion to Dismiss for Failure to Prosecute (Doc. 62) has not run.

         I. DISCUSSION

         Plaintiffs 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.

         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 keep the Court informed of his current address 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 adjudication upon the merits “[u]nless the dismissal order states otherwise.” The Court may dismiss the case without prejudice.

         Plaintiff has not informed the Court of his new address despite having been ordered to do so. Mail to Plaintiff has been returned repeatedly and cannot be forwarded. Plaintiff has abandoned his case. The undersigned will recommend dismissal of Plaintiff's First Amended Complaint (Doc. 20) without prejudice. The undersigned will further recommend that the Court deny the Motion to Dismiss (Doc. 62) as moot.

         II. ...


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