Killgo et al v. Gregorio et al

Filing 20

ORDER This action is dismissed without prejudice. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 5/15/2012. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Danny Paul Killgo, et al.,
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Plaintiffs,
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vs.

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Kelly Gregorio, Yavapai County
Superior Court Clerk, et al.,

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Defendants.
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No. CV11-8192 PCT DGC
ORDER

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Plaintiffs filed a pro se complaint against Defendants on December 5, 2011. Doc. 1.

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On December 9, 2011 Defendant Diana K. March filed a motion to dismiss the complaint for

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failure to state a claim to relief. Doc. 4. Plaintiffs failed to respond to the motion within the

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time limit set forth in the rules of procedure. See LRCiv 7.2(c); Fed. R. Civ. P. 6(d). The

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Court issued an order giving Plaintiffs until May 11, 2012 to file a response to the motion to

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dismiss. Doc. 16. Plaintiffs have failed to comply with that order. For reasons stated below,

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the Court will dismiss this action without prejudice.

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The Court advised Plaintiffs that even though they are proceeding pro se, they are still

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required to follow the Federal Rules of Civil Procedure and the Court’s Local Rules of Civil

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Procedure. Doc. 16 at 1-2. Plaintiffs were provided information as to where they could

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obtain copies of the rules. Id. The Court explicitly warned Plaintiffs that if they did not file

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a response to the motion to dismiss by the May 11, 2012 deadline, the Court would

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summarily grant the motion pursuant to Local Rule 7.2(i). Plaintiffs were further warned that

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if they failed to prosecute this action, or if they failed to comply with the rules or any Court

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order, the Court may dismiss the action with prejudice pursuant to Rule 41(b) of the Federal

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Rules of Civil Procedure. Id. (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992);

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Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995)).

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Before dismissing a case for failure to prosecute or failure to comply with the rules

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or an order, the Court 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 sanctions. See Ghazali, 46 F.3d at 53 (citing Henderson

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v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).

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The first two factors favor dismissal. Plaintiffs filed this suit more than five months

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ago. Doc. 1. They were served with the motion to dismiss in early December, 2011. Doc.

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4. They have had more than five months to respond to the motions, but have failed to do so.

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Because the Court and the public have a strong interest in judicial efficiency and the prompt

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resolution of litigation, Plaintiffs’ failure to prosecute this action weighs in favor of

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dismissal. The risk of prejudice to Defendants also weighs in favor of dismissal. Defendants

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forced to incur expenses and defend themselves in court are prejudiced by a plaintiff’s failure

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to respond to motions or to prosecute the case in a timely and efficient manner. The fourth

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factor, as always, weighs against dismissal. As for the fifth factor, the Court concludes that

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a dismissal with prejudice would be unduly harsh. Dismissal without prejudice is, however,

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an appropriate alternative sanction. The overall five-factor analysis favors dismissal. The

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Court, therefore, will dismiss this action without prejudice for Plaintiffs’ failure to prosecute,

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failure to follow the rules, and failure to comply with the Court’s order (Doc. 16).

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IT IS ORDERED:

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1.

This action is dismissed without prejudice.

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2.

The Clerk is directed to terminate this action.

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DATED this 15th day of May, 2012.

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