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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Randall Harris, a single man, 10 Plaintiff, 11 ORDER v. 12 No. CV14-0658 PHX-DGC Branch Management Tree Service, LLC, an Arizona corporation, et al., 13 Defendants. 14 15 Plaintiff’s counsel filed a motion to withdraw. Doc. 6. In response to the motion, 16 the Court set a hearing on May 7, 2014. Doc. 7. The Court specifically ordered that 17 Plaintiff Randall Harris “shall appear in person at the hearing.” Id. Plaintiff did not 18 appear at the hearing. Plaintiff’s counsel did appear, and explained that he had been 19 unable to communicate with Plaintiff. Counsel stated that Plaintiff’s telephone has been 20 disconnected and letters mailed to Plaintiff’s address, including those sent by certified 21 mail, have been returned unopened. Counsel even stated that he performed a skip trace to 22 try to locate Plaintiff, but was unsuccessful. 23 The Court granted counsel’s motion to withdraw. Because Plaintiff failed to 24 appear at the hearing as ordered and does not have a telephone number or address at 25 which the Court may contact him, the Court concludes that this case must be dismissed 26 without prejudice. 27 The Court has inherent power to dismiss a case for failure to prosecute. See Link 28 v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962). “The power to invoke this sanction is 1 necessary in order to prevent undue delays in the disposition of pending cases and to 2 avoid congestion in the District Courts.” 3 warranted, the Court must weigh five factors: the public’s interest in expeditious 4 resolution of the litigation, the Court’s need to manage its docket, the risk of prejudice to 5 the defendant, the public policy favoring disposition of cases on their merits, and the 6 availability of less drastic sanctions. See Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 7 1988). Id. In determining whether dismissal is 8 Balancing these factors, the Court concludes that dismissal without prejudice is 9 warranted. This case cannot be resolved expeditiously, and the Court cannot manage its 10 docket with respect to this case, without Plaintiff’s participation or any means of 11 contacting him. Defendant will be prejudiced if this case remains pending with Plaintiff 12 unrepresented and incommunicado. Although public policy clearly favors disposition on 13 the merits, Plaintiff’s failure to appear at the hearing and failure to inform counsel of his 14 location make disposition on the merits impossible. The Court has considered alternative 15 measures, but can find none that seems effective. An order to show cause why dismissal 16 is not warranted or an order imposing lesser sanctions “would only find itself taking a 17 round trip tour through the United States mail.” Id. at 1441. The Court finds that the least 18 drastic response to Plaintiff’s failure to appear at the hearing and failure to provide 19 information where he may be contacted is dismissal without prejudice. 20 21 22 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. 23 24 25 26 27 28 -2-

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