United States District Court, D. Arizona
Dominic W. Lanza United States District Judge
March 8, 2019, Plaintiffs Troy and Marla Wood (“the
Woods”), appearing pro se, initiated this
action in the Superior Court of Arizona in Maricopa County.
(Doc. 1-3 at 2.) On April 22, 2019, Defendant Unified
Investigative & Sciences Incorporated
(“Unified”) removed the action to this Court.
April 30, 2019, Unified filed a motion to dismiss for failure
to state a claim. (Doc. 9.) Pursuant to LRCiv 7.2(b), the
Woods' response was due 14 days later, on May 14, 2019.
The Woods did not file a response.
4, 2019, Unified filed a motion for summary disposition (Doc.
10) 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.” The
Woods' response to Unified's motion for summary
disposition was due June 18, 2019. The Woods have yet to
respond to either of Unified's pending motions,
both of which included a certification of service via U.S.
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.
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, the Woods' failure to respond to the
motion to dismiss prompted Unified to file a motion for
summary disposition upon which the Court must now rule, and
therefore the Woods' 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”). The Woods
did not request an extension, and they have offered no
explanation for their failure to respond. The Court finds
that these two factors strongly support dismissal.
third factor, risk of prejudice to Defendants, also supports
dismissal. This case already has been delayed over a month by
the Woods' failure to respond. The delay risks prejudice
to both Defendants in this case. 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,
Unified incurred expenses preparing and filing their motion
for summary disposition, which would not have been needed had
the Woods timely responded to the pending motion to dismiss.
And the Woods' failure to respond to the motion for
summary disposition provides further support to dismissal.
Id. In light of the Woods' failure to
participate in this case since the date of removal, the Court
finds that the third factor strongly supports dismissal.
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.
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, the Woods have been warned. Unified's motion for
summary disposition includes a brief legal analysis
sufficient to put the Woods on notice that dismissal was both
possible and imminent. Moreover, pro se plaintiffs are bound
by the Court's local rules and are 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.”).
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 the Woods failed to timely respond to
the motion to dismiss, failed to seek an extension, failed to
respond to the motion for summary disposition, and have 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 Unified 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
IT IS ORDERED that Unified's motion for
summary disposition (Doc. 11) is granted.
IS FURTHER ORDERED that Unified's motion to
dismiss (Doc. 10) is granted. Unified is dismissed from the
above-captioned action without prejudice.