United States District Court, D. Arizona
Gloria L. Cobbs, Plaintiff,
v.
Walmart Stores Incorporated, et al., Defendants.
ORDER
DOMINIC W. LANZA UNITED SLATES DISTRICT JUDGE.
On
December 26, 2018, Plaintiff Gloria L. Cobbs, appearing
pro se, initiated this action in the Superior Court
of Arizona in Maricopa County. (Doc. 1-3 at 2.) On March 4,
2019, Defendants removed the action to this Court. (Doc. 1.)
On
March 11, 2019, Defendants filed a motion to dismiss for
failure to state a claim. (Doc. 10.) Pursuant to LRCiv
7.2(b), Plaintiff's response was due 14 days later, on
March 25, 2019. Plaintiff did not file a response.
On
April 25, 2019, Defendants filed a motion for summary
disposition (Doc. 11) pursuant to LRCiv 7.2(i), which
provides that if the opposing party “does not serve and
file the required answering memorandum, . . . such
non-compliance may be deemed a consent to the denial or
granting of the motion, and the Court may dispose of the
motion summarily.” Defendants noted that they had sent
a copy of the motion to dismiss to Plaintiff via U.S. mail
and email, and that the parties had discussed the claims
asserted in the motion before it was filed, such that
Plaintiff definitely knew about the motion. (Doc. 11 at 1-2.)
Plaintiff's response to Defendants' motion for
summary disposition was due March 9, 2019. Plaintiff has yet
to respond to either of Defendants' pending
motions.[1]
“Failure
to follow a district court's local rules is a proper
ground for dismissal.” Ghazali v. Moran, 46
F.3d 52, 53 (9th Cir.1995); see also Wystrach v.
Ciachurski, 267 Fed.Appx. 606, 608 (9th Cir. 2008)
(upholding district court's decision to apply LRCiv
7.2(i) and grant summarily a motion to dismiss because
plaintiffs failed to timely respond). “Before
dismissing the action, the district 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, 46 F.3d at 53.
“The sub-parts of the fifth factor are whether the
court has considered lesser sanctions, whether it tried them,
and whether it warned the recalcitrant party about the
possibility of case-dispositive sanctions.”
Connecticut Gen. Life Ins. Co. v. New Images of Beverly
Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). Dismissal is
proper where “at least four factors support dismissal,
or where at least three factors strongly support
dismissal.” Yourish v. California Amplifier,
191 F.3d 983, 990 (9th Cir. 1999) (internal quotation marks
omitted). Nevertheless, “[t]his ‘test' is not
mechanical. It provides the district court with a way to
think about what to do, not a set of conditions precedent . .
. or a script that the district court must follow.”
Conn. Gen. Life, 482 F.3d at 1096.
Regarding
the first factor, “the public's interest in
expeditious resolution of litigation always favors
dismissal” and can “strongly” support
dismissal. Yourish, 191 F.3d at 990. Regarding the
second factor, Plaintiff's failure to respond to the
motion to dismiss prompted Defendants to file a motion for
summary disposition upon which the Court must now rule, and
therefore Plaintiff's failure has caused needless
consumption of court resources. Wystrach, 267
Fed.Appx. at 608; Pagtalunan v. Galaza, 291 F.3d
639, 642 (9th Cir. 2002) (finding this factor weighed in
favor of dismissal where plaintiff's noncompliance
“consumed some of the court's time that could have
been devoted to other cases on the docket”). Plaintiff
did not request an extension and has offered no explanation
for her failure to respond. The Court finds that these two
factors strongly support dismissal.
The
third factor, risk of prejudice to Defendants, also supports
dismissal. This case already has been delayed over a month by
Plaintiff's failure to respond. The delay risks prejudice
to Defendants. Parker v. Shaw & Lines, LLC, 2010
WL 1640963, *2 (D. Ariz. 2010) (“It is axiomatic that,
as time passes, it becomes harder for Defendants to defend
the action as witnesses become unavailable and memories
fade.”). Furthermore, Defendants incurred expenses
preparing and filing their motion for summary disposition,
which would not have been needed had Plaintiff timely
responded. Plaintiff's failure to respond to the motion
for summary disposition provides further support to
dismissal. Id. In light of Plaintiff's failure
to participate in this case since the date of removal, the
Court finds that the third factor strongly supports
dismissal.
The
fourth factor weighs against summary dismissal.
“Because public policy favors disposition of cases on
their merits, this factor weighs against dismissal.”
Wystrach, 267 Fed.Appx. at 608.
The
fifth factor requires the Court to consider whether less
drastic sanctions could be appropriate, whether it has
already tried them, and whether the noncompliant party has
been warned that the case could be dismissed for failure to
comply. Connecticut Gen. Life, 482 F.3d at 1096.
Here, Plaintiff has been warned. Defendants' motion for
summary disposition includes a thorough, easily-understood
analysis of the steps that the Court must undertake in
determining whether to dismiss the complaint-supported by
citations to case law-and therefore the Court finds that
Plaintiff was on notice that dismissal was both possible and
imminent. Moreover, a pro se plaintiff is bound by the
Court's local rules and is expected to read them and
follow them. King v. Atiyeh, 814 F.2d 565, 567 (9th
Cir. 1987) (“Pro se litigants must follow the same
rules of procedure that govern other litigants.”).
Here, a local rule expressly permits the Court to
“dispose of the motion summarily” when an
“unrepresented party” fails to “file the
required answering memoranda” for a motion. LRCiv
7.2(i). It is within the Court's discretion to dismiss
the action summarily at this juncture. Parker, 2010
WL 1640963, *2; see also United States v. Warren,
601 F.2d 471, 474 (9th Cir. 1979) (“Only in rare cases
will we question the exercise of discretion in connection
with the application of local rules.”).
The
Court has considered whether less drastic sanctions could be
appropriate in this case. Available alternatives include, for
example, “a formal reprimand, imposition of costs or
attorney fees, or an adjudication of the motion without the
benefit of plaintiffs' arguments in opposition.”
Wystrach, 267 Fed.Appx. at 608. Indeed,
“[d]ismissal is a harsh penalty and is to be imposed
only in extreme circumstances.” In re
Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d
1217, 1226 (9th Cir. 2006). Nevertheless, in these
circumstances, where Plaintiff failed to timely respond to
the motion to dismiss, failed to seek an extension, failed to
respond to the motion for summary disposition, and has done
nothing to prosecute the case since the action was removed,
the Court finds that the fifth factor does not weigh against
summary dismissal. “[T]he availability of less drastic
sanctions does not necessitate that those lesser sanctions be
employed in the instant matter.” Parker, 2010
WL 1640963, *2. The Court will therefore grant summary
dismissal. The Court will dismiss the case without prejudice,
which is the only less drastic sanction appropriate here.
See, e.g., Fader v. City of Phoenix, 2013 WL
5446676, *2-3 (D. Ariz. 2013) (“[D]ismissal without
prejudice is the only acceptable less drastic sanction in
this case.”).
Accordingly,
IT IS ORDERED that Defendant's motion
for summary disposition (Doc. 11) is granted.
IT
IS FURTHER ORDERED that Defendant's motion to
dismiss (Doc. 10) is granted. The Clerk of Court shall enter
judgment accordingly and dismiss this case without prejudice.
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