United States District Court, D. Arizona
HONORABLE JENNIFER C. ZIPPS UNITED STATES DISTRICT JUDGE.
record reflects that pro se Plaintiff Marcos Harris
has failed to comply with this Court's order and rules to
keep the Court informed of his address. For the following
reasons, the Court will dismiss this action.
are required to serve a notice of a change of address in
accordance with LRCiv 83.3(d) of the Local Rules of Practice
and Procedure of the U.S. District Court for the District of
Arizona. At the inception of this action, the Clerk of Court
informed Plaintiff that he must file a change of address if
his address changed during the pendency of this action. (Doc.
5, p. 2.) The Court repeated this requirement in its
screening order, warning Plaintiff that failure to notify the
Court of an address change may result in dismissal of this
action. (Doc. 8, p. 12.) The record reflects that Plaintiff
filed notices of address changes in March and September of
2019. (Docs. 26, 38.)
November 12, 2019, Court mail sent to Plaintiff at his
address of record was returned to the Court as undeliverable
bearing the notation that delivery was: “attempted -
not known.” (Doc. 45.) The record also reflects that
Plaintiff's witness list was due in October 2019 and he
failed to make such a filing.
has the general duty to prosecute this case. Fidelity
Philadelphia Trust Co. v. Pioche Mines Consolidated,
Inc., 587 F.2d 27, 29 (9th Cir. 1978). “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).
Plaintiff's failure to keep the Court informed of his
current address constitutes a failure to prosecute as well as
a failure to comply with LRCiv 83.3(d) and the Court's
courts have the inherent power to dismiss a case sua
sponte for failure to prosecute. Link v. Wabash
Railroad Co., 370 U.S. 626, 629-31 (1962). In
appropriate circumstances, the Court may dismiss a complaint
for failure to prosecute even without notice or hearing.
Id. at 633. Additionally, “[f]ailure 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), as is failure to comply with the Court's
orders. Fed.R.Civ.P. 41(b).
determining whether dismissal is warranted, 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)); see
also Ghazali, 46 F.3d at 53 (same). “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 three factors favor dismissal of this case as
Plaintiff has made no effort to continue with this action as
evidenced by his failure to submit his witness list within
the deadline and failure to keep the Court apprised of his
current address. The fourth factor, as always, weighs against
dismissal. The fifth factor requires the Court to consider
whether a less drastic alternative is available. Because the
Court has no mailing address for Plaintiff, “[a]n order
to show cause why dismissal [is] not warranted or an order
imposing sanctions would only find itself taking a round trip
tour through the United States mail.” Carey,
856 F.2d at 1441. The Court finds that only one less drastic
sanction is realistically available. Rule 41(b) provides that
a dismissal for failure to prosecute operates as an
adjudication upon the merits “[u]nless the dismissal
order states otherwise[.]” In this case, the Court
finds that a dismissal with prejudice would be unnecessarily
harsh. The Complaint will therefore be dismissed without
prejudice. Accordingly, IT IS ORDERED that this action is
dismissed without prejudice for failure to prosecute and for
failure to comply with the Court's orders and rules.
Clerk of Court is directed to enter judgment accordingly and
to close its file in this action.
 Plaintiff's September 2019 notice
of change of address indicated that he was no longer ...