Kunemund v. Mountain View Hospital et al

Filing 52

ORDER Granting 49 Defendant Mountain View Hospital's Motion to Dismiss for Lack of Prosecution. Signed by Judge James C. Mahan on 6/14/11. (Copies have been distributed pursuant to the NEF - EDS)

1
2
3
4
UNITED STATES DISTRICT COURT
5
DISTRICT OF NEVADA
6
7

KEVIN KUNEMUND,

8

2:10-CV-1465 JCM (LRL)

Plaintiff,

9
10

v.
MOUNTAIN VIEW HOSPITAL, et al.,

11
12

Defendants.

13
14
15
16

ORDER
Presently before the court is defendant Sunrise Mountain View Hospital’s motion to dismiss
for lack of prosecution. (Doc. #49). To date, the plaintiff has not filed a response.

17

On February 23, 2011, plaintiff filed a motion to amend his complaint. (Doc. #43). Defendant

18

Mountain View opposed the amendment of claims two and three, alleging that each failed to state

19

a claim upon which relief could be granted. (Doc. #45). The court agreed, and by order dated April

20

8, 2011, instructed plaintiff to file with the court and serve the revised amended complaint as to the

21

remaining claims. (Doc. #48).

22

Defendant argues that the complaint should be dismissed because plaintiff has both failed

23

to prosecute and failed to abide by court orders. (Doc. #45). The court agrees. Federal Rule of Civil

24

Procedure 41(b) permits dismissal of a complaint for (1) failure of the plaintiff to prosecute; (2)

25

failure to comply with the Federal Rules of Civil Procedure; or (3) failure to comply with an order

26

of the court. Here, plaintiff has failed to file and serve the amended complaint as directed in this

27

court’s April 8, 2011, order (doc. #48).

28
James C. Mahan
U.S. District Judge

1

Plaintiff has also failed to respond to defendant’s motion to dismiss. Pursuant to Local Rule

2

7-2(b), an opposing party’s failure to file a timely response to any motion constitutes the party’s

3

consent to the granting of the motion and is proper grounds for dismissal. U.S. v. Warren, 601 F.2d

4

471, 474 (9th Cir. 1979). However, prior to dismissal, the district court is required to weigh several

5

factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

6

manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

7

disposition of cases of their merits; and (5) the availability of less drastic sanctions.” Ghazali v.

8

Moran, 46 F.3d 52, 53 (9th Cir. 1995).

9

Thus, in light of the plaintiff’s failure to comply with court orders, failure to respond to

10

defendant’s motion, and weighing the factors identified in Ghazali, the court finds dismissal

11

appropriate.

12

Accordingly,

13

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to

14
15
16
17

dismiss (doc. #49) is GRANTED;
IT IS FURTHER ORDERED that the case is hereby dismissed as to defendant Mountain
View Hospital.
DATED June 14, 2011.

18
19
UNITED STATES DISTRICT JUDGE
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-2-