Hoff v. Thormodsgard

Filing 6

OPINION and ORDER DISMISSING CASE. IT IS HEREBY ORDERED that Hoff's Complaint 1 is DISMISSED without prejudice. The Clerk of Court shall enter Judgment and close this case. Signed by Judge Susan P. Watters on 1/13/2016. (EMH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
BILLINGS DIVISION

FILED
JAN 1 3 2016

NAUREEN ANN HOFF,
CV 15-72-BLG-SPW
Plaintiff,

Clerk, U S District Court
District Of Montana
Billings

OPINION and ORDER

vs.
JAMES THORMODSGARD,
Defendant.

As recounted in this Court's previous Order, PlaintiffNaureen Hoff filed
this action on July 23, 2015. Defendant James Thormodsgard was served with the
Summons on September 21, 2015. For three months, there was no further activity.
On December 21, 2015, the Court ordered Hoff to either move for default or show
cause why this case should not be dismissed for failure to prosecute.
Hoff's counsel responded that after he filed the instant case, he learned that
Hoff had previously filed a prose complaint against Thormodsgard in Montana
state court. Thormodsgard has hired counsel to defend him in state court, and
Hoff's counsel has subsequently appeared on behalf of Hoff in state court. Hoff
represents that a scheduling conference has been held and the matter is set for trial
in state court. Hoff acknowledges that she is "very likely bound by her choice to
initially proceed in state district court." (Doc. 5 at 2). However, Hoff requests that
this federal case "not be dismissed at this time so as to avoid the dismissal of this
1

action from prejudicing Hoffs rights to seek redress against Mr. Thormodsgard."
(Id.).
The Court recognizes that a party can pursue simultaneous litigation in state
and federal court of identical cases if the courts have concurrent jurisdiction over
the matter. Noel v. Hall, 341 F.3d 1148, 1159 (9th Cir. 2003). However, the
plaintiff must actually prosecute the case or risk dismissal. Fed. R. Civ. P. 41 (b ).
"It is a well established rule that the duty to move a case is on the plaintiff and not

on the defendant or the court." Fid. Philadelphia Trust Co. v. Pioche Mines
Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). A court may sua sponte dismiss a
case for failure to prosecute. Link v. Wabash R. Co., 370 U.S. 626, 631-32 (1962);
see also Thomas v. Wexford Med., 2015 WL 7732111, at *l (D. Ariz. Sept. 30,
2015). Before dismissing a case for failure to prosecute, a court is required to
weigh several 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; (4) the public policy favoring disposition of cases on their
merits and ( 5) the availability of less drastic sanctions.
Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
After weighing the factors, the Court finds that Hoff has not shown good
cause why this case should not be dismissed. By her own admission, Hoff does not
intend on actively pursuing this federal case. Hoff requests that this Court keep the
case open for an indefinite period of time pending the resolution of the state case.

2

The Court finds that this explanation is inadequate and violates the public's interest
in expeditious resolution of litigation. Further, the Court's broad discretion in
controlling its docket favors dismissal. The Court declines to maintain an active
and open case that the plaintiff will not pursue. While Thormodsgard may not be
prejudiced by the delay in this case as he could have responded to the Complaint,
the defendant's prejudice is just one factor. As to the public policy of disposition
of cases on their merits, Hoff can still pursue her case against Thormodsgard in
state court. Finally, the Court has considered less drastic sanctions, such as staying
this case. See Ollie v. Riggin, 848 F.2d 1016 (9th Cir. 1988). Hoff has not
requested a stay, nor has Hoff articulated a valid reason to keep this case open.
As there has been minimal activity in this case and there is ongoing state
litigation, dismissal is without prejudice and does not operate as an adjudication on
the merits. See Fed. R. Civ. P. 4l(b).
Accordingly, IT IS HEREBY ORDERED:
1. Hoffs Complaint (Doc. 1) is DISMISSED without prejudice.

2. The Clerk of Court shall enter judgment and close this case.

DATED thi"

~

/3 day ofJ~ruuy. 2016.

;}

~ri.u/~
SUSANP. WATTERS
United States District Judge

3