Biglari v. Halligan

Filing 9

ORDER dismissing this action with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiff's failure to prosecute and failure to comply with court orders, and the Clerk shall enter judgment accordingly. IT IS FURTHER ORDERED denying Defendant's Motion to Dismiss (Doc. 4 ) as moot. The Clerk shall terminate this case. Signed by Judge Neil V Wake on 3/11/16. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-15-01525-PHX-NVW

Majid Biglari,
Plaintiff,

ORDER

v.
Robert E. Halligan,

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Defendant.

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For the reasons that follow, this action will be dismissed under Federal Rule of

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Civil Procedure 41(b) for Plaintiff’s failure to prosecute and failure to comply with court

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orders. As a result, Defendant’s Motion to Dismiss (Doc. 4) will be denied as moot.

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I.

BACKGROUND

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Plaintiff and Defendant are employees of the Phoenix VA Health Care System.

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On July 16, 2015, Plaintiff filed a petition in state Justice Court seeking an injunction

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against Defendant for alleged harassment, including threats of violence, pursuant to

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A.R.S. § 12-1809.

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Defendant to stay away from Plaintiff’s residence and workplace. Plaintiff’s place of

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work is the same as Defendant’s place of work, so the injunction effectively ordered

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Defendant off his job. The Justice Court entered the injunction without giving Defendant

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notice or an opportunity to be heard and without explaining why no notice or opportunity

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Later that day the Justice Court entered an injunction ordering

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for hearing was given. On August 6, Defendant removed the proceeding to this Court.
On August 7, this Court ordered Plaintiff to show cause at a hearing on August 12
why the injunction should not be vacated as “legally deficient on the pleadings.” (Doc. 3
at 3.) The Court observed that “the ex parte injunction was entered without satisfaction
of all the requirements of the Arizona statute” and apparently deprived Defendant of “due
process of law.” (Id. at 1-2.) Specifically, the Court noted that (1) Plaintiff’s petition
failed to describe the alleged harassment with the specificity required by A.R.S.
§§ 12-1809(C)(3) and 12-1809(S), (2) the Justice Court failed to identify any efforts
made by Plaintiff to give advance notice to Defendant or reasons why such notice should
not have been given, as required by A.R.S. § 12-1809(E), and (3) the injunction deprived
Defendant of his employment without providing him notice or opportunity to be heard
and without explaining this lack of notice and opportunity for hearing, in apparent
violation of the Fourteenth Amendment Due Process Clause. (Id. at 1-2.)
On August 10, Defendant moved to vacate the injunction and dismiss the case for
lack of subject-matter jurisdiction. (Doc. 4.)
On August 12, Plaintiff failed to appear at the show cause hearing as ordered. As
a result, the Court issued an order later that day vacating the injunction in light of the
deficiencies previously noted. (Doc. 6 at 1-2.) The order further stated “it appears the
deficiencies cannot be cured by an amended pleading” and “Plaintiff will be given an
opportunity to amend his complaint, failing which this action will be terminated.” (Id. at
2.) Accordingly, the Court ordered that “by August 27, 2015, Plaintiff either (1) show
cause why this action should not be dismissed with prejudice for failure to state a claim
upon which relief can be granted or (2) file an amended complaint that does state a claim
upon which relief can be granted.” (Id. at 2-3.)
To date, Plaintiff has filed nothing in response to the Court’s August 12 order,
Defendant’s motion to dismiss, or anything else in this case.

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II.

ANALYSIS

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Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss an

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action for plaintiff’s failure to prosecute or failure to comply with a court order. See, e.g.,

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Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir.

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2005) (recognizing that courts may dismiss sua sponte under Rule 41(b)). In determining

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whether to dismiss, courts must weigh five factors: (1) the public’s interest in expeditious

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

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to the defendants; (4) the public policy favoring disposition of cases on their merits; and

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(5) the availability of less drastic alternatives. Yourish v. California Amplifier, 191 F.3d

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983, 990 (9th Cir. 1999). Here, all these factors weigh in favor of dismissal.

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A.

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Approximately seven months have passed since Defendant’s motion to dismiss

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(Doc. 4) and the Court’s order that Plaintiff either show cause why this action should not

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be dismissed or file an amended complaint (Doc. 6). Plaintiff has not responded to the

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motion or the order. Nor did Plaintiff appear at the August 12 hearing as required by the

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Court’s initial order to show cause (Doc. 3). Plaintiff’s complete lack of involvement in

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this case belies any hope that continued proceedings would lead to an expeditious

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resolution. The public’s interest in expeditious resolution strongly favors dismissal.

Public’s interest in expeditious resolution of litigation

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B.

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The Court’s August 12 order gave a specific deadline by which Plaintiff must

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either show cause why this action should not be dismissed or file an amended complaint:

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August 27, 2015. (Doc. 6 at 2-3.) That deadline has long passed. Courts must be able to

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enforce their deadlines. In addition, Plaintiff’s total radio silence since this case was

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removed indicates he has abandoned his claim. Any further time spent on this case

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would use precious judicial resources that would be better spent on active cases. The

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Court’s need to manage its docket strongly favors dismissal.

Court’s need to manage its docket

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C.

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Defendant remains the subject of an action in federal court even though Plaintiff

Risk of prejudice to the defendant

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has demonstrated no desire to pursue the action. It would be unduly prejudicial to allow
this action to linger in perpetuity, especially since Plaintiff has offered no justification for
the delay. The risk of prejudice favors dismissal.

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D.

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Disposing of this case “on the merits” would involve evaluating the injunction
entered by the Justice Court. That has already been done. This Court ordered a show
cause hearing precisely because the injunction was entered “without satisfaction of all the
requirements of the Arizona statute” and in apparent “violation of the Fourteenth
Amendment.” (Doc. 3 at 1-2.) When Plaintiff did not appear, the Court vacated the
injunction for those reasons. (Doc. 6 at 1-2.) Thus, the “merits” of this case have, in a
sense, already been reached. The reason the case was not dismissed sooner is that the
Court exercised leniency in allowing Plaintiff either to show cause why the action should
not be dismissed or to amend his claim. That leniency has reached its end.

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Public policy favoring disposition of cases on their merits

In addition, now that the injunction is vacated and Plaintiff has not petitioned the
Court for any further relief, there is no clear controversy remaining. The policy favoring
disposition on the merits, though usually weighing against dismissal, favors dismissal
here.
E.

Availability of less drastic alternatives

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The Court has already offered alternatives to dismissal. In its initial order noting

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the injunction’s deficiencies, the Court, instead of dismissing, set a show cause hearing.

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(Doc. 3.) Plaintiff failed to appear. After vacating the injunction, the Court, instead of

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dismissing, allowed Plaintiff either to show cause why the action should not be dismissed

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or to amend his claim. (Doc. 6.) The Court specifically warned that the “action will be

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terminated” if he did not respond. (Id. at 2.) Plaintiff did not respond. Thus, Plaintiff

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has repeatedly shown less drastic alternatives to be ineffective.

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The Court has considered the alternative of ruling on Defendant’s motion to

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dismiss for lack of jurisdiction (Doc. 4) instead of dismissing for failure to prosecute and

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failure to comply with court orders. Dismissing for lack of jurisdiction would be a less
drastic alternative because it would not operate as an adjudication on the merits. See Fed.
R. Civ. P. 41(b).
The problem with this alternative is that Defendant’s motion is unconvincing.
First, the motion’s discussion of federal preemption is incomplete and largely misplaced.
This is an action for an injunction against alleged workplace harassment and threats of
future violence. It is not an action for damages against a federal employee, as might be
preempted by the Federal Tort Claims Act. See 28 U.S.C. § 2679(b)(1) (protecting
federal employees from “any other civil action or proceeding for money damages”).1 The
motion does not clearly identify any alternative federal remedy that a threatened or
injured federal worker may invoke for protection in these circumstances. Second, the
motion’s discussion of state power over the federal government is inapposite. Cases
rejecting state court subpoena authority over federal employees for documents or
testimony have nothing to do with the facts of this case. Third, the motion’s discussion
of sovereign immunity is perfunctory. The motion does not discuss any statute or case
that gives a federal employee immunity from injunctive restraint against a co-worker’s
threats or future acts of violence. Such restraint would not intrude into the employee’s
federal policy-making authority.
This is not to say Defendant’s motion is incorrect. Rather, the motion’s limited
analysis and superficial citations to authority—confined to three pages—simply does not
justify its broad conclusion that this entire case was beyond the state court’s subject-

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Defendant cites two instances in which a court interpreted the Federal Tort
Claims Act as preempting an injunction against harassment. See Gonzales v. Mills, No.
CV-11-08020-PCT-NVW, 2011 WL 1379525 (D. Ariz. 2011); Dunn v. Markgraf, No.
CV-07-08117-PHX-FJM, Doc. 9 (D. Ariz. 2007) (unpublished). These are unpersuasive.
In both instances the court cited 28 U.S.C. § 2679(b)(1) in passing, without noting its
explicit limitation to preemption of proceedings against federal employees for “money
damages.” And the injunction in Gonzales arose from a dispute with respect to personnel
management, not a threat of violence.

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matter jurisdiction. The Court is not obligated to find authorities and analysis where
Defendant has not.

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Ordinarily, the Court would deny Defendant’s motion without prejudice to a
revised motion with more thorough analysis and discussion of authorities.

however, Plaintiff has consistently failed to prosecute and failed to comply with court
orders. Therefore, dismissal under Rule 41(b) is preferable to inviting a revised motion
on jurisdiction and imposing more work on Defendant and the Court without any
foreseeable benefit for Plaintiff. The fact that subject-matter jurisdiction is not yet
resolved does not preclude dismissal under Rule 41(b) because courts must be able to
sanction non-compliance with their orders at any time in the proceedings, even before
jurisdiction is found.

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Here,

Thus, the non-availability of suitable, less drastic alternatives favors dismissal
here.

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IT IS THEREFORE ORDERED dismissing this action with prejudice pursuant to
Federal Rule of Civil Procedure 41(b) for Plaintiff’s failure to prosecute and failure to
comply with court orders, and the Clerk shall enter judgment accordingly.

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IT IS FURTHER ORDERED denying Defendant’s Motion to Dismiss (Doc. 4) as
moot.
The Clerk shall terminate this case.

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Dated: March 11, 2016.

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Neil V. Wake
United States District Judge

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