Harris v. Branch Management Tree Service LLC et al
Filing
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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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