Thiel v. United States Department of Agriculture
Filing
105
FINDINGS AND RECOMMENDATIONS re 44 Complaint filed by Annette L. Thiel. Judge Magistrate Carolyn S Ostby termed case no longer referred. Objections to F&R due by 10/28/2013. Signed by Magistrate Carolyn S Ostby on 10/10/2013. (Hard copy mailed to A. Thiel.) (JDH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
ANNETTE L. THIEL, d/b/a
SWEET VALLEY PRODUCE,
CV 09-168-BLG-DWM-CSO
FINDINGS AND
RECOMMENDATION OF
UNITED STATES
MAGISTRATE JUDGE
Plaintiff,
vs.
ANN M. VENEMAN,
SECRETARY OF THE UNITED
STATES DEPARTMENT OF
AGRICULTURE, et al.,
Defendants.
I.
Background
On June 12, 2013, attorney Terry F. Schaplow moved to withdraw
as Plaintiff Annette L. Thiel’s (“Thiel”) counsel of record, indicating
that he had attempted to contact Thiel by phone (both cell phone and
land line), by email, and by U.S. Mail, all with no response from Thiel.
ECF 96.1 He informed the Court that he had sent an email to Thiel to
1
“ECF” refers to documents filed in this Court’s Electronic Case
Filing system maintained by the Clerk of Court’s office.
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advise her of his motion to withdraw. Id.
Based on the representations in Mr. Schaplow’s Motion and
Declaration (ECF 96, 96-1), the Court granted the motion, and on June
13, 2013, directed Thiel to immediately retain new counsel or appear
pro se. ECF 98. This Order instructed that “[f]ailure to retain new
counsel or appear pro se within 30 days may result in the imposition of
sanctions or dismissal of Plaintiff’s case.” Id. at 2. Plaintiff did not
respond.
Thus, on July 25, 2013, the Court ordered Thiel to appear in
writing by August 7 to show cause why her case should not be
dismissed for failure to comply with the Court’s June 13, 2013 Order.
ECF 101. Thiel did not properly file a response. She did, however,
send a facsimile transmission to the Clerk of Court’s office, requesting
an extension of time to respond to the Court’s show cause order due to
injuries she sustained in a car accident.
By order dated August 14, 2013, the Court effectively granted
Thiel’s request for an extension, and ordered Thiel to appear in person
on September 26, 2013, at the James F. Battin United States
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Courthouse in Billings, Montana, to show cause why her case should
not be dismissed with prejudice for failure to comply with the Court’s
prior orders. ECF 102. This order indicated that “[f]ailure to appear
will result in dismissal of her case.” For Court scheduling reasons, this
hearing was rescheduled for October 9, 2013. ECF 103.
II.
Show Cause Hearing
The Court convened the show cause hearing at the scheduled time
on October 9, 2013. AUSA Mark Smith appeared on behalf of the
United States. Thiel did not appear. The Court noted Thiel’s absence
and made a record of the Court’s prior orders requiring Thiel to either
appear pro se or retain counsel. Mr. Smith requested the case be
dismissed.
III. Analysis
Fed. R. Civ. P. 41(b) authorizes a defendant to move the Court to
dismiss an action “[i]f the plaintiff fails ... to comply with ... a court
order[.]” The Court may dismiss a case on its own motion without
awaiting a defense motion. See, e.g., Link v. Wabash R.R., 370 U.S.
626, 633 (1962); Hells Canyon Preservation Council v. United States
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Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). In considering
dismissal, the Court must weigh five factors: (1) the public’s interest in
expeditious resolution of litigation; (2) the Court’s need to manage its
docket; (3) the risk of prejudice to the defendants or respondents; (4)
the availability of less drastic alternatives; and (5) the public policy
favoring disposition of cases on their merits. Pagtalunan v. Galaza,
291 F.3d 639, 642 (9th Cir. 2002), cert. denied, (2003) (citing Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
1. Expeditious Resolution
“The public’s interest in expeditious resolution of litigation always
favors dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990
(9th Cir. 1990). This case has been pending since 2009. Moreover,
Thiel has had more than four months to appear pro se or retain new
counsel since the Court’s first order requiring her to do so. To date, she
has failed to comply and also has failed to show cause for her failure.
Thiel is in violation of the Court’s order. And, by her absence on
October 9, 2013, Thiel has also failed to comply with the Court’s August
14, 2013 order requiring her to appear at the show cause hearing. This
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factor weighs in favor of dismissal.
2. Docket Management
“The trial judge is in the best position to determine whether the
delay in a particular case interferes with docket management and the
public interest.” Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d
at 990). Litigants who do not obey the Court’s orders disrupt the
Court’s handling of other matters by consuming time and resources
needed by litigants who do follow the Court’s orders. This factor
weighs in favor of dismissal with prejudice.
3. Prejudice to Defendants
“To prove prejudice, a defendant must establish that plaintiff’s
actions impaired defendant’s ability to proceed to trial or threatened to
interfere with the rightful decision of the case.” Pagtalunan, 291 F.3d
at 642 (citing Malone v. United States Postal Serv., 833 F.2d 128, 131
(9th Cir. 1987)).
Here, there is little doubt that Defendants have been prejudiced
by Thiel’s failure to prosecute this action. Defendants have been forced
to attempt to defend the claims against them without the ability to
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bring Thiel’s action to completion. They have expended time and
resources in their efforts to defend, further exacerbating the prejudice
against them. This factor weighs in favor of dismissal.
4. Alternatives
The Court has considered alternatives to dismissal. In light of
Thiel’s repeated failures to comply with Court orders as outlined above,
however, the Court is convinced that further delay would serve no
purpose and would work further prejudice against Defendants. The
Court is mindful of its obligations to pro se litigants and endeavored to
fulfill them in this case. Thiel was given opportunities to comply with
Court orders and to prosecute this action, and was specifically
cautioned that her failure to appear would result in dismissal of her
case. See ECF 102. She simply failed to attempt to comply with the
Court’s orders. Dismissal without prejudice is not adequate under such
circumstances. Dismissal of this action with prejudice is appropriate.
5. Disposition on Merits
Finally, public policy favors the disposition of cases on their
merits. Pagtalunan, 291 F.3d at 643 (citing Hernandez v. City of El
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Monte, 138 F.3d 393, 399 (9th Cir. 1998)). This factor will always
counsel against dismissal.
III. Conclusion
Based on the foregoing, IT IS RECOMMENDED that this case be
DISMISSED WITH PREJUDICE for Thiel’s failure to follow the
Court’s Orders.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendation of United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendations must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after service
hereof, or objection is waived.
DATED this 10th day of October, 2013.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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