Brown v. Tucson, City of, et al

Filing 38

ORDER: IT IS ORDERED that the 33 Motion to Dismiss, filed by the defendant, City of Tucson, on 8/24/17, is GRANTED. The 12 Motion to Dismiss, filed by the defendant, City of Tucson, on 5/20/16, is GRANTED. IT IS ORDERED dismissing this case with prejudice. The Clerk is instructed to issue judgment and close this case. Signed by Magistrate Judge Leslie A Bowman on 9/25/17.(BAC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Annie Brown; Randy Brown,
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Plaintiffs,
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v.
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City of Tucson,
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Defendant.
______________________________________ )

CV 16-0106-TUC-LAB
ORDER

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Pending before the court is a motion to dismiss pursuant to Fed.R.Civ.P. 41(b), filed by
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the defendant, City of Tucson, on August 24, 2017. (Doc. 33)
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The plaintiff, Annie Brown, alleges that the Tucson Police failed to properly
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accommodate her cognitive dysfunction in violation of Title II of the ADA and Section 504 of
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the Rehabilitation Act. (Doc. 5) She further alleges a violation of her right to equal protection.
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Id. The defendant, City of Tucson (City), filed a motion to dismiss pursuant to Fed.R.Civ.P.
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12(b)(6) on May 20, 2016. (Doc. 12) The plaintiff did not file a responsive brief.
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In the pending motion, the City argues that the case should be dismissed pursuant to
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Fed.R.Civ.P. 41(b) for failure to comply with this court’s order setting a deadline for filing a
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responsive brief.
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Magistrate Judge Bowman presides over this action having received the written consent
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of all parties. (Doc. 18)
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Background
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On May 20, 2016, the City filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).

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(Doc. 12) They argue the amended complaint is “confusing, conclusory and fails to allege a

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Monell claim.” (Doc. 12)

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Since that date, the plaintiffs have filed a number of motions to extend the time for filing

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a response. The plaintiffs tried to find legal representation, and then the plaintiff, Randy Brown,

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underwent medical treatment. The court extended the deadline five times. (Doc. 19); (Doc. 23);

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(Doc. 25); (Doc. 28); (Doc. 32) The court warned the plaintiffs that “[f]ailure to file a response

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could result in this action being dismissed without further notice.” (Doc. 21, p. 2)

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The deadline for filing a response was extended to August 21, 2017. (Doc. 32) The
plaintiffs, however, did not file a response.

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On August 24, 2017, the City filed the pending motion to dismiss for failure to comply

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with the court’s order to file a timely response pursuant to Fed.R.Civ.P. 41(b), citing Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1991). (Doc. 33)

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On September 5, 2017, the plaintiff, Randy Brown, filed a response to the motion to

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dismiss for failure to file a timely response, which the court construed as another motion to

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extend the deadline for filing a response to the original motion to dismiss. (Doc. 34) This court

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extended the deadline to September 19, 2017. (Doc. 36) The court notified the plaintiffs that

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“[n]o further extensions would be granted absent extraordinary circumstances” and that if the

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plaintiffs failed to file a timely response to the motion to dismiss, the action could be dismissed

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summarily without further notice. (Doc. 36, p. 2) (citing LRCiv 7.2(i))

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The plaintiffs did not file a timely response.

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Discussion

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Rule 41(b) reads in pertinent part as follows:

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If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it.

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Fed.R.Civ.P.
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In this case, the plaintiffs have not complied with the court’s order to file a response by

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the deadline of September 19, 2017. (Doc. 36) Accordingly, this court may dismiss the case

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pursuant to Fed.R.Civ.P. 41(b). Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1991).

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Moreover, the court may summarily grant the City’s previously filed motion to dismiss

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pursuant to Local Rule 7.2(i), which states that when no responsive brief is filed, “such

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noncompliance may be deemed a consent to the denial or granting of the motion and the court

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may dispose of the motion summarily.”

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“Failure to follow a district court’s local rules is a proper ground for dismissal.” Ghazali

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v. Moran, 46 F.3d 52, 53 (9th Cir.1995). “Although we construe pleadings liberally in their

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favor, pro se litigants are bound by the rules of procedure.” Id.

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Before dismissing an action, however, the court is required to weigh several factors: “(1)

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the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic sanctions.” Ghazali v. Moran, 46

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F.3d 52, 53 (9th Cir.1995). “The first two of these factors favor the imposition of sanctions in

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most cases, while the fourth cuts against a default or dismissal sanction.” Aguado v. First

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Magnus Fin. Corp., 2009 WL 4058173, at *1 (D. Ariz. 2009). “Thus the key factors are

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prejudice and availability of lesser sanctions.” Id.

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Upon balancing the factors, the court finds that the action should be dismissed. Although

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the City does not explicitly address the issue of prejudice, a delay of more than fifteen months

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has occurred since the motion to dismiss was originally filed. “Unnecessary delay inherently

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increases the risk that witnesses’ memories will fade and evidence will become stale.”

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Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002).

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The court has extended the deadline six times; the court warned the plaintiffs that failure

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to file a timely response could result in dismissal; and the plaintiffs still have not filed a

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response to the original motion to dismiss. Accordingly, the court finds it is unlikely that less

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drastic sanctions would suffice.

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IT IS ORDERED that the motion to dismiss pursuant to Fed.R.Civ.P. 41(b), filed by the
defendant, City of Tucson, on August 24, 2017, is GRANTED. (Doc. 33)

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IT IS ORDERED that the motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), filed by

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the defendant, City of Tucson, on May 20, 2016, is GRANTED in accordance with LRCiv

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7.2(i). (Doc. 12)

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IT IS ORDERED dismissing this case with prejudice. The Clerk is instructed to issue
judgment and close this case.

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DATED this 25th day of September, 2017.

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