Allied Property And Casualty Insurance Company v. Beazer Homes Holdings Corp. et al

Filing 94

ORDER that defendant Beazer Homes Holdings Corporations motion to dismiss for failure to prosecute 91 is DENIED. Plaintiff is warned that its failure to read and follow the rules of procedure for this court in the future will result in the imposition of sanctions, which may include dismissal. The parties file a joint pretrial order on or before January 10, 2012. Signed by Judge James C. Mahan on 12/19/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ALLIED PROPERTY AND
CASUALTY INSURANCE
COMPANY, a foreign corporation,
individually and as subrogee for its
insured Joseph M. Holohan,

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2:09-CV-626 JCM (PAL)

Plaintiff,

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v.
BEAZER HOMES HOLDINGS CORP.,
et al.,

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Defendants.
ORDER

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Presently before the court is defendant Beazer Homes Holdings Corporation’s motion to

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dismiss for failure to prosecute. (Doc. #91). Plaintiff Allied Property and Casualty Insurance

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Company filed an opposition. (Doc. #92). Defendant then filed a reply. (Doc. #93).

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This case arises out of a March 4, 2007, house fire. (Doc. #1, Ex. 1). This case has been

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pending in federal court since April 2009. (Doc. #1). Discovery closed on November 30, 2009.

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(Doc. #56). The court issued its last dispositive order on December 9, 2010. (Doc. #90). Plaintiff

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took no further action in this case until it filed its opposition to the instant motion to dismiss on

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November 4, 2011. (Doc. #92). This is a delay of more than 10 months.

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Pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 41-1, defendant moves to

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dismiss for failure to prosecute. (Doc. #91). Defendant argues that it has been prejudiced by

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plaintiff’s 10-month delay in prosecuting this case. Specifically, defendant asserts that the delay has

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James C. Mahan
U.S. District Judge

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caused: (1) diminished recollection of the 2007 fire by percipient witnesses and (2) increased expert

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expenses because the experts will have to review all of the evidence.

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In response, plaintiff notes that this case involved substantial discovery. (Doc. #92). Thus,

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plaintiff argues that a 10-month delay is not unreasonable and has not caused defendant prejudice.

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Plaintiff further acknowledges its failure to file a joint pre-trial order, stating that it “was

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unfortunately under the mistaken belief that the [c]ourt was setting a trial date in this matter.” (Doc.

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#92). Finally, plaintiff asserts that this case is ready for trial and dismissal would be prejudicial to

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plaintiff.

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Pursuant to Rule 41(b), “[i]f the plaintiff fails to prosecute . . . a defendant may move to

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dismiss the action.” However, “[d]ismissal is a harsh penalty and is to be imposed only in extreme

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circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). The court weighs the

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following factors to determine whether dismissal is appropriate: (1) the public’s interest in

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expeditious resolution of litigation, (2) the court’s need to manage its docket, (3) the risk of prejudice

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to defendants/respondants, (4) the availability of less drastic alternatives, and (5) the public policy

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favoring disposition of cases on their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.

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2002).

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After weighing the Pagtalunan factors, the court finds that dismissal is not appropriate in this

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case. See id. Here, plaintiff asserts that the case is ready for trial. (Doc. #92). Thus, the last two

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factors, the availability of less drastic alternatives and the public policy favoring disposition of cases

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on their merits, heavily weigh against dismissing this case. Under these facts, a 10-month delay is

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not an “extreme circumstance[]” warranting the “harsh penalty” of dismissal. Henderson, 779 F.2d

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at 1423.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant Beazer Homes

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Holdings Corporation’s motion to dismiss for failure to prosecute (doc. #91) be, and the same hereby

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is, DENIED. Plaintiff is waned that its failure to read and follow the rules of procedure for this court

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in the future will result in the imposition of sanctions, which may include dismissal.

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James C. Mahan
U.S. District Judge

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IT IS FURTHER ORDERED that the parties file a joint pretrial order on or before January
10, 2012.
DATED this 19th day of December, 2011.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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