Clifton v. M&P Venture Partners LLC et al

Filing 32

ORDER - IT IS ORDERED: 1. Plaintiff's claims are dismissed under Rule 41(b) for failure to prosecute. 2. Counsel's motion to withdraw (Doc. 29 ) is granted. 3. The Clerk is directed to terminate this action. (See document for further details). Signed by Judge David G Campbell on 7/14/17. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Chad Clifton,

No. CV-16-02697-PHX-DGC
Plaintiff,

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v.

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ORDER

M&P Venture Partners LLC, et al.,

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Defendants.

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Plaintiff Chad Clifton failed to appear at the settlement conference before Judge

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Boyle on June 15, 2017, as ordered (Docs. 24, 27), failed to respond to Judge Boyle’s

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subsequent order to show cause (Doc. 28), failed to appear before this Court as ordered

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on July 14, 2017 (Doc. 30), and has stopped communicating with his counsel (Doc. 29).

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Plaintiff’s counsel has made significant efforts to locate and communicate with him,

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including process servers, mail, email, phone messages, and Internet searches, all to no

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avail. The Court will dismiss this case for failure to prosecute and failure to comply with

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court orders.

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The Ninth Circuit has developed a five-part test to determine whether a dismissal

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sanction is just: (1) the public’s interest in expeditious resolution of the litigation; (2) the

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court’s need to manage its docket; (3) the risk of prejudice to the party seeking sanctions;

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

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of less drastic sanctions. Valley Engineers, Inc. v. Electric Engineering Co., 158 F.3d

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1051, 1057 (9th Cir. 1998). “[W]here a court order is violated, factors 1 and 2 support

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sanctions and 4 cuts against case dispositive sanctions, so 3 and 5 . . . are decisive.” Id.

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Factor 5 “involves consideration of three subparts: whether the court explicitly discussed

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alternative sanctions, whether it tried them, and whether it warned the recalcitrant party

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about the possibility of dismissal.” Id.

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Considering this five-factor test, the Court concludes that dismissal is appropriate.

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The public’s interest in expeditious resolution of litigation and the Court’s need to

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manage its docket require action when a plaintiff refuses to prosecute a case. In addition,

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Defendant Mitchell will be prejudiced if a sanction of dismissal is not imposed and this

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case continues to languish due to Plaintiff’s non-cooperation and defiance of court orders.

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Although the Court has not specifically warned Plaintiff that his case would be dismissed

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if he refused to participate, the Court knows of no method to deliver such a warning.

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Plaintiff has disappeared and stopped communicating with his counsel. Any attempted

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warning would be futile. The Court has considered less drastic sanctions, but in light of

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Plaintiff’s unknown location and failure to comply with several court orders, the Court

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concludes that the only reasonable action is dismissal.

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IT IS ORDERED:

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1.

Plaintiff’s claims are dismissed under Rule 41(b) for failure to prosecute.

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2.

Counsel’s motion to withdraw (Doc. 29) is granted.

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3.

The Clerk is directed to terminate this action.

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Dated this 14th day of July, 2017.

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