United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Eileen
S. Willett United States Magistrate Judge
On
August 17, 2018, Plaintiff Brett Ingebretson, who was not a
prisoner within the meaning of 28 U.S.C. § 1915(h) at
the time, filed a Complaint and Demand for Jury Trial (Doc.
26), alleging violations of 42 U.S.C. § 1983 and
battery. The Court ordered the Clerk of Court to
“terminate any and all Defendants in this matter,
without further notice, that have not been served within the
time required by Fed.R.Civ.P. 4(m) on December 17,
2018.” (Doc. 18 at 2). No. extensions of time to serve
have been sought.
Defendants
City of Tempe, Andrew Brooks, Heith Fink, Lena Palmaioli and
Sylvia Moir filed an Answer (Doc. 25). However, also on
October 8, 2018, Plaintiff filed a First Amended Complaint
and Demand for Jury Trial (Doc. 26). The Court found that
Plaintiff's First Amended Complaint mooted the Answer to
the original Complaint and ordered that Plaintiff serve the
First Amended Complaint (Doc. 26 at 1). Service of the First
Amended Complaint was executed as to the City of Tempe,
Andrew Brooks, Heith Fink, Lena Palmaioli, and Sylvia Moir
(Docs. 30-34). No. answer has been filed as to the First
Amended Complaint.
On
March 27, 2019, the Court granted Plaintiff's
counsel's Motion to Withdraw without Consent (Doc. 37).
All correspondence was thereafter mailed to the Plaintiff at
his address of record as provided by his counsel. The
Court's March 27, 2019 Order (Doc. 37) was returned to
the Court on May 10, 2019, marked “Return to
Sender/Unclaimed/ Unable to Forward.” (Doc. 40). As of
the filing of this Report and Recommendation, the Plaintiff
has not filed a Notice of Change of Address as required by
LRCiv 83.3(d). Nor have any other documents mailed to the
Plaintiff been returned to the Court (Docs. 38, 39).
The
Court issued its Order Setting Rule 16 Case Management
Conference which ordered the parties to (i) meet and confer,
(ii) prepare a Joint Rule 26(f) Case Management Report, and
(iii) appear on April 24, 2019 for a Case Management
Conference (Doc. 38). The Court held a Case Management
Conference on April 24, 2019, and the Plaintiff failed to
appear. The Court found that Plaintiff had notice of the
hearing, as the Order setting the hearing had been mailed to
the Plaintiff at his address of record and had not been
returned as undeliverable (Doc. 39). The Court ordered that
the Plaintiff show cause in writing no later than May 8, 2019
“why this case should not be dismissed pursuant to Rule
41 for failure to prosecute and for failure to abide by this
Court's Order.” (Id.). A copy of the
Court's text entry was mailed to the Plaintiff at his
address of record on April 24, 2019. As of the date of filing
of this Report and Recommendation, the Plaintiff has failed
to respond to the Court's Order to Show Cause. The time
to do so has passed.
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
failed to appear at his Case Management Conference despite
adequate notice. One Order (Doc. 37) mailed to the Plaintiff
has been returned. Plaintiff has failed to show cause why his
case should not be dismissed for failure to prosecute his
case and abide by the Court's Order (Doc. 38). The Court
concludes that Plaintiff has abandoned his case. The
undersigned will recommend dismissal of Plaintiffs First
Amended Complaint and Demand for Jury Trial (Doc. 26) without
prejudice.
II.
CONCLUSION
For the
reasons set forth herein, IT IS RECOMMENDED
that the First Amended Complaint and Demand for Jury Trial
(Doc. 26) be dismissed without prejudice for Plaintiffs
failure to comply with the Court's Orders and to
prosecute pursuant to Fed.R.Civ.P. 41(b).
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 recommendation within which to file specific written
objections with the Court. See 28 U.S.C. §
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
Magistrate Judge's Report and Recommendation may result
in the acceptance of the Report and Recommendation by the
District Court without further review. See United States
v. Reyna-Tapia,328 F.3d 1114, 1121 (9th Cir. 2003).
Failure to file timely objections to any factual
determinations ...