Garcia v. Glendale Police Department et al

Filing 128

AMENDED ORDER re: 127 Order. VACATING Final Pretrial Conference set for 2/19/2014 at 4:00 PM. to permit Plaintiff time to respond to Defendant's Motion to Dismiss for Failure to Prosecute (Doc. 119 ). ORDERED that Plaintiff shall respond to the motion to dismiss (Doc. 119 ) on or before 2/28/2014. ORDERED that if Plaintiff fails to timely respond to the motion to dismiss (Doc. 119 ), the Court will deem Plaintiff's failure to respond to be Plaintiff's consent to the motion be ing granted under Local Rule Civil 7.2(i). Signed by Senior Judge James A Teilborg on 2/10/2014. (Copy mailed to pro se plaintiff Robert A. Garcia on 2/10/2014). (Order Amended to correct text vacating Final pretrial conference date of 2/19/2014, not 2/29/2014.)(TLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert A. Garcia,
No. CV 11-02260-PHX-JAT

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Plaintiff,

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v.

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Glendale Police Department, et al.,

ORDER

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Defendants.

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Pending before the Court is sole remaining Defendant Robert Solomon’s Motion to
Dismiss pro se Plaintiff’s complaint for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).1 (Doc. 119). Defendant alleges that, in contravention of the

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Court’s previous Order (Doc. 69), Plaintiff has again2 refused to confer or communicate

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with Defendant’s counsel to craft and file various joint pretrial materials. (Doc. 119 at 2–

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3; see Plaintiff’s January 10, 2010 “Notice of Incommunicada” [sic], Doc. 104

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(proclaiming that Plaintiff—who is incarcerated—will no longer send, sign for, or accept

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mail)).

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The Court has previously warned Plaintiff that his failure to follow the Court’s

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Orders and participate in his case is grounds for dismissal. (Doc. 17 at 10 (“If Plaintiff

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fails to timely comply with every provision of this Order, including these warnings, the

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Court may dismiss this action without further notice.”); Doc. 65 at 2 (“Plaintiff has

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Rule 41(b) provides that “[i]f 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.” F.R. Civ. P. 41(b).
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(See Doc. 65; Doc. 119 at 2).

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disregarded the Court’s order warning him of the consequences of failing to timely

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respond.

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including complying with all requirements of this Court. In particular, Plaintiff must

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comply with a new final pretrial order setting the Final Pretrial Conference that will

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follow.”) (emphasis added)). Consequently, the Court is inclined to grant Defendant’s

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Motion.
However, Dismissal for failure to prosecute is a “harsh penalty and is to be

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The Court will give Plaintiff one further opportunity to proceed to trial

imposed only in extreme circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423
(9th Cir. 1986). Before dismissing Plaintiff’s case, the Court must 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.” Id. (citing Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984); Mir v. Fosburg,

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706 F.2d 916, 918 (9th Cir. 1983). Consequently, the Court will permit Plaintiff an
opportunity to respond to Defendant’s motion. Plaintiff is cautioned that if he fails to
timely respond pursuant to this Order, the Court may dismiss this action without further
notice.
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Accordingly,

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IT IS ORDERED that the Final Pretrial Conference, set for February 19, 2014 at

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4:00pm, is vacated to permit Plaintiff time to respond to Defendant’s motion to dismiss

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for failure to prosecute (Doc. 119).

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IT IS FURTHER ORDERED that Plaintiff shall respond to the motion to dismiss
(Doc. 119) on or before February 28, 2014.
IT IS FINALLY ORDERED that if Plaintiff fails to timely respond to the motion
to dismiss (Doc. 119), the Court will deem Plaintiff's failure to respond to be Plaintiff’s
consent to the motion being granted under Local Rule Civil 7.2(i).
Dated this 10th day of February, 2014.

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