United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett, United States Magistrate Judge.
THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT COURT
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.
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).
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.
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.
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.
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.
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 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).
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
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.