Dema v. Allegiant Air LLC

Filing 9

ORDER that Plaintiff's Complaint (Doc. 1 ) is dismissed without prejudice. The Clerk shall terminate this action. Signed by Judge Steven P Logan on 7/9/14. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Victor O. Dema,

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Plaintiff,
vs.
Allegiant Air, LLC,

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Defendant.

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No. CV-14-00968-PHX-SPL
ORDER

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On June 23, 2014, the Court’s Orders were returned by the United States Post

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Office with the notation “Return to Sender – Refused.” (Doc. 6.) The Court thereby

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issued an Order (Doc. 7) directing Plaintiff to show cause why this case should not be

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dismissed for failure to prosecute. Finding Plaintiff has failed to respond to the Court’s

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Order, this action will be dismissed.

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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 to

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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.”

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

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must consider five factors: “(1) the public’s interest in expeditious resolution of litigation;

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

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

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less drastic sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d

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1421, 1423 (9th Cir. 1986)).

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Under the instant circumstances, the first factor “always favors dismissal.” Yourish

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v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). “It would be absurd to require the

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

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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.” Carey v. King, 856 F.2d 1439, 1441 (9th

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Cir. 1988) (per curiam). “A party, not the district court, bears the burden of keeping the

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court apprised of any changes in his mailing address.” Id. The second factor also favors

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dismissal. See Ferdik, 963 F.2d at 1261. Plaintiff’s failure to keep the Court informed of

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his address prevents this case from proceeding in the foreseeable future. See Edwards v.

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

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be consumed by a case sitting idly on the court’s docket”). Plaintiff has not provided the

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Court with his current address, and the Court’s mail has been returned. Under the third

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factor, “the failure to prosecute diligently is sufficient by itself to justify a dismissal, even

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in the absence of a showing of actual prejudice to the defendant from the failure.” In re

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Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994) (internal quotation omitted). The fourth factor

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weighs against dismissal because public policy favors disposition of cases on their merits,

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see Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002), however, it is outweighed

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by the other factors. Lastly, while dismissal itself is a drastic sanction, see Ferdik, 963

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F.2d at 1260, dismissal without prejudice is available and appropriate in this case. 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 (Doc. 1) is dismissed without
prejudice.

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IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action.

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Dated this 9th day of July, 2014.

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Honorable Steven P. Logan
United States District Judge

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