Spain v. Sundt Construction Incorporated

Filing 6

ORDER - IT IS ORDERED DISMISSING Plaintiff's Complaint without prejudice. The Clerk is kindly directed to terminate this case. Signed by Judge Stephen M McNamee on 10/13/11. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Stephanie Spain,
Plaintiff,

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vs.

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Sundt Construction, Inc., an Arizona
corporation,

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Defendant.
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No. CV-11-1617-PHX-LOA
ORDER

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Pro se Plaintiff commenced this lawsuit on August 18, 2011. (Doc. 1) On the same

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day, the case was randomly assigned to Magistrate Judge Lawrence O. Anderson. (Doc. 2)

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On September 7, 2011, Judge Anderson issued a Notice of Assignment and Order, directing

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Plaintiff to either voluntarily consent to magistrate-judge jurisdiction pursuant to 28 U.S.C.

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§ 636(c)(1) or elect to proceed before a United States District Judge on or before September

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14, 2011. (Doc. 4)

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On September 19, 2011, Judge Anderson issued an Order to Show Cause due to

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Plaintiff’s failure to comply with Judge Anderson’s September 7, 2011 order to either

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voluntarily consent to magistrate-judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1) or elect

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to proceed before a United States District Judge. (Doc. 5) Plaintiff was ordered to show

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cause in writing on or before September 26, 2011 why this case should not be dismissed

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without prejudice, or why sanctions should not be imposed for her failure to comply with

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court orders.

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In his September 19, 2011 Order to Show Cause (Doc. 5) Judge Anderson forewarned

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Plaintiff that, pursuant to Federal Rule of Civil Procedure 41(b) and Ferdik v. Bonzelet, 963

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F.2d 1258, 1260 (9th Cir. 1992), trial courts have the inherent power to control their dockets

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and, in the exercise of that power, may impose sanctions including, where appropriate,

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dismissal of a case with or without prejudice. See also Flaksa v. Little River Marine Constr.

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Co., 389 F.2d 885, 887, 887 (5th Cir. 1968) (cases omitted); Chambers v. NASCO, Inc., 501

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U.S. 32, 44-45 (1991) (district court may “fashion appropriate sanction for conduct”

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including “outright dismissal.”). “The threat of sanctions promotes compliance with a court’s

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orders even if the sanctions threatened are never imposed.” Green v. Lisa Frank, Inc., 221

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Ariz. 138, 152, 211 P.3d 16, 30 (Az. Ct. App. 2009) (concluding the trial court did not abuse

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its discretion in striking plaintiff’s reply, dismissing his cross-claim, and entering judgment

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in favor of defendant) (collecting federal and state cases of dismissals for failure to comply

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with court orders).

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A district court’s inherent authority to sanction parties for failing to comply with its

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orders exists, in part, to prevent “disobedience [of] the orders of the Judiciary, regardless of

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whether such disobedience interfered with the conduct of trial.” Chambers, 501 U.S. at 44

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(quoting Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 798 (1987))

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(internal quotation marks omitted). “Dismissal of the complaint for failure to comply with

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the rules [is] within the court’s discretion.” Sergio Bautista et al. v. L.A. Cnty., 216 F.3rd 837,

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841 (9th Cir. 2000) (citing Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187,

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188 (2nd Cir. 1943)); Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348

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(9th Cir. 1995) (The public interest “in expeditious resolution of litigation,” a court’s need

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to manage docket, risk of prejudice to party seeking sanctions, public policy favoring

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disposition on the merits, availability of lesser sanctions, bad faith of violating party,

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relationship between conduct and merits justify sanction); Poulis v. State Farm Fire & Cas.

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Co., 747 F.2d 863, 868 (3d Cir. 1984) (personal responsibility of party, prejudice to other

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party, history of dilatory conduct, willfulness or bad faith, other sanctions, merits of claim

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or defense).
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The Civil Justice Reform Act of 1990 (“CJRA”), 28 U.S.C. § 471 et seq., mandates

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the early and ongoing judicial management of the pretrial process. Under the CJRA mandate,

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“[f]ederal trial courts are now required, by statute, to implement techniques and strategies

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designed to dispose of cases in an efficient and inexpensive manner.” Schwarzkopf Techs.

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Corp. v. Ingersoll Cutting Tool Co., 142 F.R.D. 420, 423 (D. Del. 1992). Additionally,

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federal judges “are subject to the injunction of Rule 1 [Federal Rules of Civil Procedure] that

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[the Rules] ‘be construed to secure the just, speedy and inexpensive determination of every

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action.’” Herbert v. Lando, 441 U.S. 153, 177 (1979) (emphasis in original). Plaintiff’s

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failures to timely comply with Judge Anderson’s September 7th and 19th, 2011 orders are

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frustrating the speedy and inexpensive resolution of this case.

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In determining whether to dismiss a case for failure to comply with court orders,

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district courts weigh five factors: (1) the public interest; (2) the court’s need to manage the

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docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring disposition

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of cases on their merits; and (5) the availability of less drastic alternatives. Ferdik, 963 F.2d

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at 1260-61. Plaintiff’s failures to comply with court orders are frustrating the Court’s

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responsibilities mandated by Federal Rule of Civil Procedure 1 and the Civil Justice Reform

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Act of 1990, 28 U.S.C. § 471 et seq., such as, “setting early, firm trial dates, such that the

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trial is scheduled to occur to occur within eighteen months after the filing of the complaint.

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. . .” 28 U.S.C. § 473(a)(2) (emphasis added). Plaintiff’s pro se status does not discharge her

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obligation to “abide by the rules of the court in which [they] litigate[].” Carter v. Comm’r

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of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986).

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After considering the adequacy of lesser sanctions, that Plaintiff has been forewarned

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that sanctions may be imposed, and weighing all five Ferdik factors to determine if dismissal

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is appropriate due to Plaintiff’s failure to comply with prior court orders, the Court concludes

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that dismissal of Plaintiff’s Complaint without prejudice is appropriate and just under the

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circumstances of this case.

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Pursuant to General Order 11-3 (Dismissal of a Civil Case Assigned to a United States
Magistrate Judge Absent Voluntary Consent by the Parties Under 28 U.S.C. § 636(c)(1)),
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IT IS ORDERED DISMISSING Plaintiff’s Complaint without prejudice. The Clerk
is kindly directed to terminate this case.
DATED this 13th day of October, 2011.

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