Fader v. Phoenix, City of et al

Filing 41

ORDER granting 39 Defendants' Motion to Dismiss for Lack of Prosecution; granting 40 Defendant's Motion for Summary Disposition. ORDER that this case is dismissed without prejudice. The Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 9/27/13.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Scott Fader,
No. CV 12-01184-PHX-JAT

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Plaintiff,

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v.

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City of Phoenix, et al.,

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ORDER

Defendants.

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Pending before the Court is Defendants’ motion to dismiss Plaintiff’s complaint

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with prejudice pursuant to Federal Rule of Civil Procedure 41(b) (Doc. 39) and

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Defendants’ motion for a ruling regarding their motion to dismiss (Doc. 40). Defendants’

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motions are unopposed. The Court grants Defendants’ motions for the following reasons.

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I.

BACKGROUND

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On May 3, 2013, Plaintiff’s counsel filed a motion to withdraw as counsel of

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record for Plaintiff in part because of “counsel’s inability to communicate with his client.”

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(Doc. 33). Counsel stated that all attempts to locate or communicate with Plaintiff since

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April 3, 2013 had been unsuccessful. (Id. at 2). The Court granted Plaintiff’s counsel’s

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motion. (Doc. 35). Mail sent from the Court to Plaintiff has been subsequently returned

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as undeliverable. (Doc. 38). Since April, all attempts to contact Plaintiff by the Court and

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by defense counsel have been unsuccessful.

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On July 16, 2013, Defendants filed the pending motion to dismiss for failure to

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prosecute. (Doc. 39). Plaintiff failed to respond to the motion to dismiss. Subsequently,

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on August 22, 2013, Defendants filed the pending motion for summary disposition in lieu

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of Plaintiff’s failure to respond (Doc. 40). Plaintiff has not responded to this motion

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either.

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II.

ANALYSIS

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Local Rule of Civil Procedure 7.2(i) provides that if an “unrepresented party or

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counsel does not serve and file the required answering memoranda . . . such non-

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compliance may be deemed a consent to the . . . granting of the motion and the Court may

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dispose of the issue summarily.” LRCiv. 7.2(i). Local Rule 7.2(c) requires responsive

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memoranda to be filed within fourteen (14) days after a motion is served.

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“Failure to follow a district court’s local rules is a proper ground for dismissal.”

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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (citing United States v. Warren, 601

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F.2d 471, 474 (9th Cir. 1979)). “Although we construe pleadings liberally in their favor,

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[even] pro se litigants are bound by the rules of procedure.” Id. at 54 (citing King v.

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Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). In determining whether to dismiss an action

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for lack of prosecution, the district court is required to weigh several factors: “(1) the

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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its

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

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disposition of cases on their merits and (5) the availability of less drastic sanctions.”

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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Ghazali, 46 F.3d at

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53. “The first two of these factors favor the imposition of sanctions in most cases, while

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the fourth cuts against a default or dismissal sanction. Thus the key factors are prejudice

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and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir.

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1990). The Ninth Circuit Court of Appeals “review[s] the ‘district court’s dismissal

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pursuant to its local rules for abuse of discretion. Only in rare cases will [the Court of

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Appeals] question the exercise of discretion in connection with the application of local

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rules.’” Sekhon v. BAC Home Loans Servicing LP, 519 F. App’x 971, 972 (9th Cir. 2013)

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(quoting Ghazali, 46 F.3d at 53).

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In Ghazali, the Ninth Circuit Court of Appeals upheld summary dismissal of a 42
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U.S.C. § 1983 action for the failure to follow a Nevada district court local rule because the

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pro se plaintiff failed to respond to the defendant’s motion to dismiss. Ghazali, 46 F.3d at

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53. The Nevada rule, like Local Rule 7.2(i), considered the failure to file a response to a

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motion to “constitute a consent to the granting of the motion.” Id. (quoting D. Nev. R.

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140-6). The Court of Appeals reasoned that the dismissal was proper because the pro se

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plaintiff was bound by the rules of procedure, and was given notice of the motion and

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ample time to respond. Id. at 54 (citing King, 814 F.2d at 567).

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Like the plaintiff in Ghazali, Plaintiff in this case has not responded to

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Defendants’ motion to dismiss and has made no attempt to contact his own former

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counsel, defense counsel, or the Court. As noted in Wanderer, the first two factors—

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expeditious resolution and docket management—generally favor dismissal. Wanderer,

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910 F.2d at 656. They weigh especially heavily here because of Plaintiff’s total failure to

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respond to Defendants’ dispositive motion.

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The third factor also favors Defendants. There is risk of prejudice to Defendants

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to deny the motion. Analyzing this factor poses virtually the same considerations as those

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in Ghazali, as that case also involved a litigant in exactly the same procedural position.

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Thus, under Ghazali, this factor also favors dismissal.

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While the public policy favoring resolution on the merits weighs against dismissal,

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Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002), it is no more compelling here

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than it was in Ghazali. Accordingly, this factor weighs only slightly against dismissal.

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The final factor requires the Court to consider the availability of less drastic

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sanctions. Defendants have moved for the Court to dismiss the Complaint with prejudice.

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The Court could grant Defendants’ motion without prejudice as a less drastic sanction.

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Plaintiff is now a pro se litigant. Plaintiff has also been given ample opportunity to

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communicate with his former counsel, or at a minimum communicate with this Court and

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Defendants. Further, Plaintiff has had time to respond to Defendants’ motion to dismiss

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and to move for an extension of time to file a response and has not done so. Thus, in

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weighing this last factor, the Court finds that dismissal without prejudice is the only
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acceptable less drastic sanction in this case.

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In sum, the five-factor analysis supports dismissal of this case for failure to

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respond to the motion to dismiss. The Court’s decision to grant the motion in these

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circumstances is further supported by the fact that it is premised upon a local rule that

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expressly permits the Court to summarily grant unopposed motions. Ghazali, 46 F.3d at

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53 (quoting Warren, 601 F.2d at 474 (“Only in rare cases will we question the exercise of

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discretion in connection with the application of local rules.)). Defendants’ motion to

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dismiss will therefore be granted based on Plaintiff’s failure to respond. See LRCiv 7.2(i).

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III.

CONCLUSION

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Based on the foregoing,

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IT IS ORDERED that Defendants’ Motion to Dismiss for failure to prosecute

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(Doc. 39) is granted.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Disposition
(Doc. 40) is granted.

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IT IS FURTHER ORDERED that this case is dismissed without prejudice.

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IT IS FINALLY ORDERED that the Clerk of the Court shall enter judgment

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accordingly.
Dated this 27th day of September, 2013.

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