Johnson v. Philling et al

Filing 13

ORDER that Plaintiff's Complaint is dismissed without prejudice, and the Clerk of Court must terminate the action. Signed by Senior Judge Robert C Broomfield on 6/14/2013. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mark Anthony Johnson,

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Plaintiff,
vs.

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Sergeant Philling, et al.,
Defendants.

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No. CV-12-02523-PHX-RCB (SPL)
ORDER

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On May 30, 2013 and on June 7, 2013, Plaintiff’s mail was returned to the Clerk

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of Court as undeliverable. (Doc. 11, 12.) The mail return dated June 7, 2013, remarks

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that Plaintiff is “no longer in custody.” (Doc. 12 at 2.)

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Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, a district court

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may dismiss an action due to a plaintiff’s failure to prosecute or to comply with court

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orders. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (a court’s authority to

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dismiss for lack of prosecution is necessary to prevent undue delays in the disposition of

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pending cases and to avoid congestion in the calendars of the district courts); Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260 (1992) (a district court may dismiss an action for failure

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to comply with any order of the court). Further, a district court may dismiss an action for

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failure to comply with a local rule. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).

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Rule 83.3(d) of the Local Rules of Civil Procedure (“LRCiv”), Rules of Practice of the

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U.S. District Court for the District of Arizona, requires that an “unrepresented party must

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file a notice of a name or address change… no later than fourteen (14) days before the

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effective date of the change, except that an unrepresented party who is incarcerated must

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submit a notice within seven (7) days after the effective date of the change.”

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Here, Plaintiff has been specifically warned that failure to comply with LRCiv

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83.3 may result in dismissal of his action. (Doc. 6 at 2; Doc. 9 at 6.) “A party, not the

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district court, bears the burden of keeping the court apprised of any changes in his

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mailing address.” Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per curiam). If the

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Court were to order Plaintiff to show cause why dismissal is not warranted, the Order

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“would only find itself taking a round trip tour through the United States mail.” Id. The

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Court is also not required to hold the matter in abeyance. “It would be absurd to require

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the district court to hold a case in abeyance indefinitely just because it is unable, through

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the plaintiff’s own fault, to contact the plaintiff to determine if his reasons for not

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prosecuting his lawsuit are reasonable or not.” Id.

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Before dismissal for failure to prosecute or to comply with a local rule, however,

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the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2)

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the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the

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public policy favoring disposition of cases on their merits; and (5) the availability of less

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drastic sanctions.” Ghazali v. Moran, 46 F.3d at 53 (quoting Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986)). Under the instant circumstances, the first factor

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“always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).

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The second factor also favors dismissal. See Ferdik v. Bonzelet, 963 F.2d at 1261.

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Plaintiff has not provided the Court with his present address, and the Court continues to

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receive returned mail. Plaintiff’s failure to keep the Court informed of his address

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prevents the case from proceeding in the foreseeable future. See Edwards v. Marin Park,

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Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (noting that “resources continue to be

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consumed by a case sitting idly on the court’s docket”). “[T]he failure to prosecute

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diligently is sufficient by itself to justify a dismissal, even in the absence of a showing of

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actual prejudice to the defendant from the failure.” In re Eisen, 31 F.3d 1447, 1452 (9th

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Cir. 1994) (internal quotation omitted). However, because public policy favors
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disposition of cases on their merits, the fourth factor weighs against dismissal. Pagtalunan

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v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). In considering the final factor, the Court

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finds that dismissal without prejudice is an available and less drastic sanction in this case.

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Although dismissal itself is a drastic sanction, see Ferdik, 963 F.2d at 1260, absent

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Plaintiff’s current address, the alternatives are bound to be futile.

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In sum, the five-factor analysis favors dismissal. Therefore, in light of Plaintiff’s

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failure to prosecute this action and comply with LRCiv 83.3, requiring him to notify the

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Court of address changes, dismissal of this action is warranted. Accordingly,

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IT IS ORDERED that Plaintiff’s Complaint is dismissed without prejudice, and
the Clerk of Court must terminate the action.
DATED this 14th day of June, 2013.

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