Von Greenbrier v. Greenbrier, Greenbrier IA
Filing
6
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. The Complaint is DISMISSED without prejudice for failure to prosecute. Signed by Judge Dana L. Christensen on 8/23/2012. Mailed to Von Greenbrier. (TAG, )
FILED
AUG 2 3 2012
PATRICK E. DUFFY. CLERK
By
""oe""PU""T""'Y-::::CL'""E=RK'""'.M""'IS"""S=OU7."L,t..-:-
IN THE UNITED STATES DISTRlCT COURT
FOR THE DISTRlCT OF MONT ANA
MISSOULA DIVISION
ERRICHE ANTON VON GREENBRIER, )
)
Plaintiff,
)
)
vs.
)
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GREENBRIER, and GREENBRIER lA,
)
)
Defendants.
)
CV 12-53-M-DLC-JCL
ORDER
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Plaintiff Von Greenbrier filed this action stating vague allegations and
expressing a desire to "counter sue" the Defendants, who apparently have a pre
existing lawsuit pending against Plaintiff in the State of Virginia. United States
Magistrate Judge Jeremiah C. Lynch conducted preliminary screening of the
Complaint as required by 28 U.S.C. § 1915(e)(2) and issued an Order dated April
23,2012, in which he noted several defects in the Complaint. Judge Lynch
explained that the Complaint as currently pled is subject to dismissal, and ordered
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Plaintiff Von Greenbrier to file an amended complaint. Judge Lynch set a
deadline of May 23, 2012, for filing of an amended complaint. He warned Von
Greenbrier that failure to adhere to the deadline may subject the Complaint to
dismissal under Fed. R. Civ. P. 41 (b). Von Greenbrier has not filed an amended
complaint, and has filed nothing in this case since he filed his Complaint on April
10,2012.
On June 1,2012, Judge Lynch entered Findings and Recommendations in
this matter in which he recommends dismissal of the Complaint for failure to
prosecute under Fed. R. Civ. P. 41(b). Plaintiff Von Greenbrier did not timely
object and so has waived the right to de novo review of the record. 28 U.S.C. §
636(b)(I). This Court will review the Findings and Recommendation for clear
error. McDonnell Douglas Corp. v. Commodore Bus. Mach.. Inc., 656 F .2d 1309,
1313 (9th Cir. 1981). Clear error exists if the Court is left with a "definite and
fum conviction that a mistake has been committed." United States v. Syrax, 235
F .3d 422,427 (9th Cir. 2000).
Judge Lynch weighed the five factors to be considered in deciding whether
to dismiss for failure to prosecute, as set out in Pagtalunan v. Galaza, 291 F.3d
639, 642 (9th Cir. 2002). Judge Lynch found that the interest in expeditious
resolution of cases, the Court's need to manage its docket, and the availability of
less drastic options all favor dismissal, while only the preference for resolution of
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cases on the merits does not. Judge Lynch found the factor of prejudice to the
Defendants to be neutral in this instance. On this basis Judge Lynch
recommended that the case be dismissed without prejudice for failure to prosecute.
I can find no clear error with Judge Lynch's Findings and Recommendations (Doc.
No.5) and therefore adopt them in full.
Accordingly, IT IS HEREBY ORDERED that the Complaint is
DISMISSED without prejudice for failure to prosecllte under Fed. R. Civ. P.
41 (b). The Clerk of Court is directed to enter a judgment of dismissal.
.,,t,
DATED this 2~ day of August, 2012.
Dana L. Christensen, District
United States District Court
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