Harris v. Branch Management Tree Service LLC et al
ORDER DISMISSING CASE without prejudice. The clerk is directed to terminate this matter. Signed by Judge David G Campbell on 5/8/14. (LSP)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Randall Harris, a single man,
No. CV14-0658 PHX-DGC
Branch Management Tree Service, LLC, an
Arizona corporation, et al.,
Plaintiff’s counsel filed a motion to withdraw. Doc. 6. In response to the motion,
the Court set a hearing on May 7, 2014. Doc. 7. The Court specifically ordered that
Plaintiff Randall Harris “shall appear in person at the hearing.” Id. Plaintiff did not
appear at the hearing. Plaintiff’s counsel did appear, and explained that he had been
unable to communicate with Plaintiff. Counsel stated that Plaintiff’s telephone has been
disconnected and letters mailed to Plaintiff’s address, including those sent by certified
mail, have been returned unopened. Counsel even stated that he performed a skip trace to
try to locate Plaintiff, but was unsuccessful.
The Court granted counsel’s motion to withdraw. Because Plaintiff failed to
appear at the hearing as ordered and does not have a telephone number or address at
which the Court may contact him, the Court concludes that this case must be dismissed
The Court has inherent power to dismiss a case for failure to prosecute. See Link
v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962). “The power to invoke this sanction is
necessary in order to prevent undue delays in the disposition of pending cases and to
avoid congestion in the District Courts.”
warranted, the Court must weigh five factors: the public’s interest in expeditious
resolution of the litigation, the Court’s need to manage its docket, the risk of prejudice to
the defendant, the public policy favoring disposition of cases on their merits, and the
availability of less drastic sanctions. See Carey v. King, 856 F.2d 1439, 1440 (9th Cir.
In determining whether dismissal is
Balancing these factors, the Court concludes that dismissal without prejudice is
warranted. This case cannot be resolved expeditiously, and the Court cannot manage its
docket with respect to this case, without Plaintiff’s participation or any means of
contacting him. Defendant will be prejudiced if this case remains pending with Plaintiff
unrepresented and incommunicado. Although public policy clearly favors disposition on
the merits, Plaintiff’s failure to appear at the hearing and failure to inform counsel of his
location make disposition on the merits impossible. The Court has considered alternative
measures, but can find none that seems effective. An order to show cause why dismissal
is not warranted or an order imposing lesser sanctions “would only find itself taking a
round trip tour through the United States mail.” Id. at 1441. The Court finds that the least
drastic response to Plaintiff’s failure to appear at the hearing and failure to provide
information where he may be contacted is dismissal without prejudice.
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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