Hicks v. Dollar General Market

Filing 38

ORDER. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that 36 Defendant's Motion to Dismiss is GRANTED; this case is DISMISSED for failure to serve it by the court's extended deadline. IT IS FURTHER ORDERED that 31 , 35 plaintiff's remaining motions are DENIED as moot, and all hearings and deadlines are VACATED. The Clerk of Court is directed to CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 9/19/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Natasha Hicks,

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Plaintiff

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v.

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2:15-cv-0405-JAD-PAL
Order

Dollar General Market, et al.,

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[ECF Nos. 31, 35, 36]

Defendants

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On July 17, 2017, I granted Dollar General Market’s motion to quash service, explained

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to plaintiff Natasha Hicks the deficiencies in her service, and gave her an additional 30 days to

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properly serve Dolgen Midwest, LLC, dba Dollar General.1 I warned Hicks that her failure to

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serve Dolgen Midwest with a copy of the amended complaint and summons by August 16, 2017,

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would result in dismissal without further notice.2 When Hicks asked for additional time, I gave

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her a final deadline of September 15, 2017, to serve Dolgen.3 I warned her that “[f]ailure to do

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so will result in this case being dismissed without further notice” and that “[t]his deadline will

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not be extended further without extraordinary circumstances.”4

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Instead of serving Dolgen as ordered, on the eve of the deadline, Hicks filed a motion to

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amend her complaint a second time,5 and then on the September 15th service deadline, she filed a

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motion asking the court to direct the U.S. Marshal Service to serve process for her.6 Dolgen

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ECF No. 25.

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Id.

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ECF No. 28.

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Id.

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ECF No. 31.

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ECF No. 35.

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countermoves to dismiss this case, as the court promised it would if Hicks failed to meet the

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September 15th service deadline.7

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District courts have the inherent power to control their dockets and “[i]n the exercise of

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that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.8 A

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court may dismiss an action based on a party’s failure to prosecute an action, failure to obey a

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court order, or failure to comply with local rules.9 In determining whether to dismiss an action

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on one of these grounds, the court must consider: (1) the public’s interest in expeditious

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

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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the

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availability of less drastic alternatives.10

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The first two factors, the public’s interest in expeditiously resolving this litigation and the

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court’s interest in managing its docket, weigh in favor of dismissal. The third factor, risk of

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prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises

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from the occurrence of unreasonable delay in filing a pleading ordered by the court or

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prosecuting an action.11 A court’s warning to a party that its failure to obey the court’s order will

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ECF No. 36. Because I would dismiss this action sua sponte for failure to comply with my
order anyway, I do not wait for Hicks’s response to the motion to dismiss.

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Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986).

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See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with
local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to
comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439,
1440–41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se
plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130
(9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779
F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with
local rules).
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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423–24; Malone, 833 F.2d at 130;
Ferdik, 963 F.2d at 1260–61; Ghazali, 46 F.3d at 53.

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See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).
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result in dismissal satisfies the fifth factor’s “consideration of alternatives” requirement.12 The

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fourth factor—the public policy favoring disposition of cases on their merits—is greatly

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outweighed by the factors favoring dismissal. Accordingly,

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With good cause appearing and no reason to delay, IT IS HEREBY ORDERED,

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ADJUDGED, AND DECREED that Defendant’s Motion to Dismiss [ECF No. 36] is

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GRANTED; this case is DISMISSED for failure to serve it by the court’s extended deadline.

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IT IS FURTHER ORDERED that plaintiff’s remaining motions [ECF Nos. 31, 35] are

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DENIED as moot, and all hearings and deadlines are VACATED.

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The Clerk of Court is directed to CLOSE THIS CASE.

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DATED: September 19, 2017

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_______________________________
________________
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Jennifer A. Dorsey
Dorsey
o se
United States District Judge
Judge
ates
ud
ud

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Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132–33; Henderson, 779 F.2d at 1424.
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