Robledo v. CEC Entertainment Incorporated et al

Filing 27

ORDER - 1. Counsel's motion to withdraw (Doc. 26 ) is granted. 2. Plaintiff's motion to vacate (Doc. 24 ) is granted. The settlement conference set in this case for November 21, 2014 at 1:30 p.m. before Judge John A. Buttrick is vacated. 3. Pursuant to Rule 41(b), this action is dismissed. 4. The Clerk shall enter judgment accordingly. (See document for further details). Signed by Judge David G Campbell on 11/17/14. (LAD)

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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 No. CV14-1269 PHX DGC Annette Robledo, Plaintiff, 10 11 v. 12 ORDER CEC Entertainment Incorporated, an Arizona corporation doing business as Chuck E. Cheese’s, et al., 13 14 Defendants. 15 Plaintiff’s counsel have moved to withdraw. Doc. 26. They advise the Court that 16 Plaintiff has stopped communicating with them and her location is now unknown. Id. 17 Counsel have tried communicating with Plaintiff by email, telephone, mail, through her 18 mother, and with the aid of a process server, all to no avail. Id. Plaintiff has failed to 19 cooperate with counsel in preparing for a settlement conference scheduled by the Court 20 for November 21, 2014. See Doc. 19. 21 Plaintiff has a general duty to prosecute this case. Fidelity Philadelphia Trust Co. 22 v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). Rule 41(b) of the 23 Federal Rules of Civil Procedure provides that “[f]or failure of the plaintiff to prosecute 24 or to comply with these rules or any order of court, a defendant may move for dismissal 25 of an action.” In Link v. Wabash Railroad Co., 370 U .S. 626, 629-31 (1962), the 26 Supreme Court recognized that a federal district court has the inherent power to dismiss a 27 case sua sponte for failure to prosecute, even though the language of Rule 41(b) appears 28 to require a motion. Moreover, in appropriate circumstances, the Court may dismiss a     1 complaint for failure to prosecute even without notice or hearing. Id. at 633. 2 In determining whether Plaintiff’s failure to prosecute warrants dismissal, the 3 Court must weigh the following five factors: “(1) the public’s interest in expeditious 4 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice 5 to the defendants; (4) the public policy favoring disposition of cases on their merits; and 6 (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th 7 Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)). Here, 8 the first, second, and third factors favor dismissal. Plaintiff’s failure to communicate 9 with her counsel and prepare for events scheduled by the Court prevents the case from 10 proceeding in the foreseeable future. The fourth factor, as always, weighs against 11 dismissal. 12 alternative is available. Without Plaintiff’s current address, however, certain alternatives 13 are bound to be futile. As in Carey, “[a]n order to show cause why dismissal is not 14 warranted or an order imposing sanctions would only find itself taking a round trip tour 15 through the United States mail.” Id. at 1441. The fifth factor requires the Court to consider whether a less drastic 16 The Court concludes that dismissal of this case under Rule 41(b) is appropriate. 17 IT IS ORDERED: 18 1. Counsel’s motion to withdraw (Doc. 26) is granted. 19 2. Plaintiff’s motion to vacate (Doc. 24) is granted. The settlement 20 conference set in this case for November 21, 2014 at 1:30 p.m. before 21 Judge John A. Buttrick is vacated. 22 3. Pursuant to Rule 41(b), this action is dismissed. 23 4. The Clerk shall enter judgment accordingly. 24 Dated this 17th day of November, 2014. 25 26 27 28 ‐ 2 ‐ 

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