Demarrias v. Dschaak
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 in full. Any appeal of this decision would not be taken in good faith. Signed by Judge Brian Morris on 10/19/2017. Mailed to Demarrias (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
ORDER ADOPTING FINDINGS AND
CHRIS DSCHAKK, et aI.,
Counsel for Plaintiff Reba Demarrias filed a motion to withdraw. (Doc. 12.)
Ms. Demarrias was specifically warned that should she fail to respond to the Court,
the motion to withdraw would be granted and this matter would be recommended
for dismissal for failure to comply with a court order pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure. (Doc. 13.) Ms. Demarrias failed to respond.
(Doc. 14 at 1.)
The Court has the inherent power to sua sponte dismiss a case for lack of
prosecution or failure to comply with a court order. Henderson v. Duncan, 779
F.2d 1421, 1423 (9th Cir. 1992). Dismissal, however, is a harsh penalty and should
be imposed as a sanction only in extreme circumstances. Id. United States
Magistrate Judge John Johnston entered Findings and Recommendations in this
matter on September 19,2017. (Doc. 14.) Neither party filed objections.
When a party makes no objections, the Court need not review de novo the
proposed Findings and Recommendations. Thomas v. Arn, 474 U.S. 140, 149-52
(1986). This Court will review Judge Johnston's Findings and Recommendations,
however, for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309,1313 (9th Cir. 1981).
Judge Johnston determined the following factors must be considered before
dismissal is imposed as a sanction for failure to prosecute or failure to comply with
a court order: (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/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 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61). Judge Johnston,
after considering the factors, found dismissal warranted regarding all four factors
in this case.
Accordingly, Judge Johnston recommends that the Court dismiss this matter
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Doc. 14 at 4.)
Judge Johnston, further, recommends that the docket should reflect that any appeal
of this decision would not be taken in good faith pursuant to Rule 24(a)(3)(A) of
the Federal Rules of Appellate Procedure.ld. The Court has reviewed Judge
Johnston's Findings and Recommendations for clear error. The Court finds no
error in Judge Johnston's Findings and Recommendations, and adopts them in full.
IT IS ORDERED that Judge Johnston's Findings and Recommendations
(Doc. 14), is ADOPTED IN FULL.
IT IS ORDERED that this matter be dismissed. The Clerk of Court shall
close this matter and enter judgment pursuant to Rule 58 of the Federal Rules of
IT IS FURTHER ORDERED that the docket shall reflect that the Court
certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure
that any appeal of this decision would not be taken in good faith.
DATED this 19th day of October, 2017.
United States District Court Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?