Tilley v. Phoenix, City of et al

Filing 8

ORDER - IT IS ORDERED that Plaintiff's Complaint is hereby dismissed without prejudice. The Clerk is kindly directed to terminate this case. (See document for further details). Signed by Judge Stephen M McNamee on 8/11/11. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ronald Tilley, Plaintiff, 10 11 vs. 12 13 City of Phoenix; Police Standards Bureau; Cynthia P. Gonzalez; Glen Caroner & Unknown Parties, 14 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) No. CV-11-1321-PHX-LOA ORDER 15 Pro se Plaintiff commenced this lawsuit on July 1, 2011. (Doc. 1) 16 That same day, the case was randomly assigned to Magistrate Judge Lawrence O. 17 Anderson. (Doc. 3) On July 7, 2011, Judge Anderson took under advisement Plaintiff’s 18 request for IFP status because Plaintiff failed to fully answer all the questions on the 19 application to Proceed IFP Plaintiff was ordered to refile the IFP form fully completed 20 or pay the filing fee of $350.00 on or before July 20, 2011. (Doc. 4) 21 Further, on July 7, 2011, Judge Anderson issued a Notice of Assignment 22 and Order, directing Plaintiff to submit on or before July 22, 2011: (1) his written election 23 to either voluntarily consent to magistrate-judge jurisdiction pursuant to 28 U.S.C. § 24 636(c)(1) or elect to proceed before a United States district judge, and file (2) a First 25 Amended Complaint in compliance with Rule 8(a) and (d), Fed.R.Civ.P., and LRCiv.7.1. 26 27 28 1 As explained in detail in Judge Anderson’s July 7, 2011 order, the First 2 Amended Complaint must contain a short and plain statement of Plaintiff’s factual and 3 legal allegations that establish a “plausible claim” against each Defendant, consistent with 4 Twombly and Iqbal; specify the District Court’s jurisdictional basis; and clarify the 5 federal and state statute(s), if any, upon which Plaintiff is relying to support his 6 claim(s). 7 “It is well established that ‘[d]istrict courts have inherent power to control 8 their docket.’” Ready Transportation, Inc., v. AAR Manufacturing, Inc.,627 F.3d 402, 404 9 (9th Cir. 2010) (quoting Atchison, Topeka & Santa Fe Ry. v. Hercules, Inc., 146 F.3d 10 1071, 1074 (9th Cir. 1998) (alteration in original) (quoting Hernandez v. City of El 11 Monte, 138 F.3d 393, 398 (9th Cir. 1998)). “This includes the power to strike items from 12 the docket as a sanction for litigation conduct.” Id. (citing, among others, Lazy Y Ranch 13 Ltd. v. Behrens, 546 F.3d 580, 586-87, 588 (9th Cir. 2008) (discussing, but declining to 14 rule on, the ability of a district court to strike documents submitted as exhibits to a 15 motion); Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1224-26 16 (9th Cir. 2005) (upholding a district court’s grant of a motion to strike deposition 17 corrections and a declaration as a sanction when a party had violated Fed.R.Civ.P. 30(e)). 18 A district court’s inherent power also permits it to dismiss an entire action 19 to rein in abusive conduct. Atchison, 146 F.3d at 1074 (recognizing inherent power to 20 dismiss an action to sanction abusive conduct such as judge-shopping or failure to 21 prosecute). This inherent power, however, “must be exercised with restraint and 22 discretion. A primary aspect of that discretion is the ability to fashion an appropriate 23 sanction for conduct which abuses the judicial process.” Ready Transp., Inc., 627 F.3d at 24 404-405 (citing Thompson v. Hous. Auth. of Los Angeles, 782 F.2d 829, 830 (9th Cir. 25 1986) (per curiam) (requiring a district court to weigh, among other factors, “the 26 availability of less drastic sanctions” before resorting to dismissal as a sanction). 27 In his July 29, Order to Show Cause, doc. 7, Judge Anderson forewarned 28 Plaintiff that, pursuant to Rule 41(b), Fed. R. Civ. P., and Ferdik v. Bonzelet, 963 F.2d -2- 1 1258, 1260 (9th Cir. 1992), trial courts have the inherent power to control their dockets 2 and, in the exercise of that power, may impose sanctions including, where appropriate, 3 dismissal of a case with or without prejudice. See also, Flaksa v. Little River Marine 4 Constr. Co., 389 F.2d 885, 887, 887 (5th Cir. 1968) (citing cases); Chambers v. NASCO, 5 Inc., 501 U.S. 32, 44-45 (1991) (district court may “fashion appropriate sanction for 6 conduct” including “outright dismissal.”). “The threat of sanctions promotes compliance 7 with a court’s orders even if the sanctions threatened are never imposed.” Green v. Lisa 8 Frank, Inc., 221 Ariz. 138, 152, 211 P.3d 16, 30 (Az.Ct.App. 2009) (concluding the trial 9 court did not abuse its discretion in striking plaintiff’s reply, dismissing his cross-claim, 10 and entering judgment in favor of defendant) (collecting federal and state cases of 11 dismissals for failure to comply with court orders). 12 A district court’s inherent authority to sanction parties for failing to comply 13 with its orders exists, in part, to prevent “‘disobedience [of] the orders of the Judiciary, 14 regardless of whether such disobedience interfered with the conduct of trial.’” Chambers, 15 501 U.S. at 44 (quoting Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 16 798 (1987)). “Dismissal of the complaint for failure to comply with the rules [is] within 17 the court’s discretion.” Sergio Bautista et al. v. Los Angeles County, 216 F.3rd 837, 841 18 (9th Cir. 2000) (citing Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 19 188 (2nd Cir. 1943)); Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 20 348 (9th Cir. 1995) (The public interest “in expeditious resolution of litigation,” a court’s 21 need to manage docket, risk of prejudice to party seeking sanctions, public policy 22 favoring disposition on the merits, availability of lesser sanctions, bad faith of violating 23 party, relationship between conduct and merits justify sanction); Poulis v. State Farm 24 Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (personal responsibility of party, 25 prejudice to other party, history of dilatory conduct, willfulness or bad faith, other 26 sanctions, merits of claim or defense). 27 The Civil Justice Reform Act of 1990 (“CJRA”), 28 U.S.C. § 471 et seq., 28 mandates the early and on-going judicial management of the pretrial process. Under the -3- 1 CJRA mandate, “[f]ederal trial courts are now required, by statute, to implement 2 techniques and strategies designed to dispose of cases in an efficient and inexpensive 3 manner.” Schwarzkopf Technologies Corp. v. Ingersoll Cutting Tool Co., 142 F.R.D. 4 420, 423 (D. Del. 1992). Additionally, federal judges “are subject to the injunction of 5 Rule 1 [Federal Rules of Civil Procedure] that [the Rules] ‘be construed to secure the just, 6 speedy and inexpensive determination of every action.’” Herbert v. Lando, 441 U.S. 153, 7 177, (1979) (emphasis in original). Plaintiff’s failures to timely comply with Judge 8 Anderson’s July 7 and 29, 2011 orders are frustrating the speedy and inexpensive 9 resolution of this case. 10 In determining whether to dismiss a case for failure to comply with court 11 orders, district courts weigh five factors: (1) the public interest; (2) the court’s need to 12 manage the docket; (3) the risk of prejudice to the defendant; (4) the public policy 13 favoring disposition of cases on their merits; and (5) the availability of less drastic 14 alternatives. Ferdik, 963 F.2d at 1260-61. Plaintiff’s failures to comply with court orders 15 are frustrating the Court’s responsibilities mandated by Rule 1, FED.R.CIV.P.,and the 16 Civil Justice Reform Act of 1990, 28 U.S.C. § 471 et seq., such as, “setting early, firm 17 trial dates, such that the trial is scheduled to occur to occur within eighteen months after 18 the filing of the complaint. . . .” 28 U.S.C. § 473(a)(2) (emphasis added). Plaintiff’s pro se 19 status does not discharge his obligation to “abide by the rules of the court in which [they] 20 litigate[].” Carter v. Commissioner of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 21 1986). 22 After considering the adequacy of lesser sanctions, Plaintiff has been 23 forewarned that sanctions may be imposed and weighing all five Ferdik factors to 24 determine if dismissal is appropriate due to Plaintiff’s failure to comply with prior court 25 orders, the Court concludes that dismissal of Plaintiff’s Complaint without prejudice is 26 appropriate and just under the circumstances of this case. 27 28 -4- 1 Pursuant to General Order 11-3 (Dismissal of a Civil Case Assigned to a 2 United States Magistrate Judge Absent Voluntary Consent by the Parties Under 28 U.S.C. 3 § 636(c)(1)), 4 5 6 IT IS ORDERED that Plaintiff’s Complaint is hereby dismissed without prejudice. The Clerk is kindly directed to terminate this case. DATED this 11th day of August, 2011. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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