Ingebretsen v. City of Tempe

          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 ...