Harris v. Branch Management Tree Service LLC et al

Filing 10

ORDER DISMISSING CASE without prejudice. The clerk is directed to terminate this matter. Signed by Judge David G Campbell on 5/8/14. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Randall Harris, a single man,

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Plaintiff,

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ORDER

v.

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No. CV14-0658 PHX-DGC

Branch Management Tree Service, LLC, an
Arizona corporation, et al.,

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Defendants.

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Plaintiff’s counsel filed a motion to withdraw. Doc. 6. In response to the motion,

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the Court set a hearing on May 7, 2014. Doc. 7. The Court specifically ordered that

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Plaintiff Randall Harris “shall appear in person at the hearing.” Id. Plaintiff did not

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appear at the hearing. Plaintiff’s counsel did appear, and explained that he had been

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unable to communicate with Plaintiff. Counsel stated that Plaintiff’s telephone has been

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disconnected and letters mailed to Plaintiff’s address, including those sent by certified

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mail, have been returned unopened. Counsel even stated that he performed a skip trace to

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try to locate Plaintiff, but was unsuccessful.

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The Court granted counsel’s motion to withdraw. Because Plaintiff failed to

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appear at the hearing as ordered and does not have a telephone number or address at

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which the Court may contact him, the Court concludes that this case must be dismissed

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without prejudice.

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The Court has inherent power to dismiss a case for failure to prosecute. See Link

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v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962). “The power to invoke this sanction is

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necessary in order to prevent undue delays in the disposition of pending cases and to

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avoid congestion in the District Courts.”

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warranted, the Court must weigh five factors: the public’s interest in expeditious

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resolution of the litigation, the Court’s need to manage its docket, the risk of prejudice to

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the defendant, the public policy favoring disposition of cases on their merits, and the

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availability of less drastic sanctions. See Carey v. King, 856 F.2d 1439, 1440 (9th Cir.

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1988).

Id.

In determining whether dismissal is

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Balancing these factors, the Court concludes that dismissal without prejudice is

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warranted. This case cannot be resolved expeditiously, and the Court cannot manage its

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docket with respect to this case, without Plaintiff’s participation or any means of

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contacting him. Defendant will be prejudiced if this case remains pending with Plaintiff

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unrepresented and incommunicado. Although public policy clearly favors disposition on

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the merits, Plaintiff’s failure to appear at the hearing and failure to inform counsel of his

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location make disposition on the merits impossible. The Court has considered alternative

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measures, but can find none that seems effective. An order to show cause why dismissal

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is not warranted or an order imposing lesser sanctions “would only find itself taking a

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round trip tour through the United States mail.” Id. at 1441. The Court finds that the least

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drastic response to Plaintiff’s failure to appear at the hearing and failure to provide

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information where he may be contacted is dismissal without prejudice.

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IT IS ORDED THAT that this case is dismissed without prejudice. The clerk is
directed to terminate this matter.
Dated this 8th day of May, 2014.

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