Dollar v. Las Vegas Metropolitan Police Department et al

Filing 8

REPORT AND RECOMMENDATION Recommending to strike and dismiss with prejudice 3 Complaint. Objections to R&R due by 9/7/2017. Signed by Magistrate Judge Carl W. Hoffman on 8/23/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GEORGE DOLLAR,

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Plaintiff,
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vs.
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LAS VEGAS METROPOLITAN POLICE
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DEPARTMENT, et al.,
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Defendants.
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__________________________________________)

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Case No. 2:15-cv-00712-APG-CWH
REPORT & RECOMMENDATION

This matter is before the court on Plaintiff George Dollar’s failure to comply with the

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court’s order (ECF No. 5) and order to show cause (ECF No. 7).

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I.

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BACKGROUND
On April 18, 2017, the court entered an order requiring Mr. Dollar to complete and file

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summons forms and USM-285 forms with respect to John Doe LVMPD Officers #1 and #2 by May

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22, 2017. (Order (ECF No. 5).) Mr. Dollar did not comply with that order. On June 15, 2017, the

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court entered an order requiring Mr. Dollar to show cause in writing by July 17, 2017, why he

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failed to comply with the court’s previous order. (OSC (ECF No. 7).) The order to show cause

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stated that filing the required summons forms and USM-285 forms would satisfy the court that

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sanctions are not warranted and that no further response to the show cause order would be required

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under those circumstances. (Id.) The order to show cause warned Mr. Dollar that failure to

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respond would result in a report and recommendation to the assigned United States district judge

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that his case be dismissed. (Id.) Mr. Dollar has not responded to the order to show cause or filed

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the summons forms and USM-285 forms and has not requested an extension of time to do so.

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II.

ANALYSIS
The broad, underlying purpose of the Federal Rules of Civil Procedure is to “secure the just,

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speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. The

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rules provide several mechanisms that allow courts to accomplish this goal through the use of

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sanctions against parties that fail to comply with court orders or that unnecessarily multiply

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proceedings. Federal Rule of Civil Procedure 16 is the central pretrial rule that authorizes courts to

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manage their cases “so that disposition is expedited, wasteful pretrial activities are discouraged, the

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quality of the trial is improved, and settlement is facilitated.” In re Phenylpropanolamine Prods.

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Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006). Specifically, Rule 16(f) “puts teeth into these

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objectives by permitting the judge to make such orders as are just for a party’s failure to obey a

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scheduling or pretrial order, including dismissal.” Id. Rule16(f) provides in relevant part that “[o]n

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motion or on its own, the court may issue any just orders, including those authorized by Rule

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37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails to appear at a scheduling or other pretrial

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conference . . . or fails to obey a scheduling order or other pretrial order.” Fed. R. Civ. P. 16(f)(1).

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Potential sanctions under Rule 37(b)(2)(A) include striking pleadings and dismissing an

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action. Fed. R. Civ. P. 37(b)(2)(A)(iii), (v). “Courts are to weigh five factors in deciding whether

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to dismiss a case for failure to comply with a court order: (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 sanctions.” In re Phenylpropanolamine, 460 F.3d at 1226. It is within

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the court’s discretion whether to impose dismissal sanctions. Id.

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

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the court’s interest in managing its docket, weigh in favor of terminating sanctions. Mr. Dollar has

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disengaged from participation in this case, as demonstrated by his failure to comply with the court’s

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orders requiring him to file summons and USM-285 forms and his failure to respond to the court’s

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order to show cause. Mr. Dollar’s repeated failures to comply with the court’s orders are

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inconsistent with Rule 1’s directive to “secure a just, speedy, and inexpensive” determination of

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this action. Mr. Dollar’s failures to comply with the court’s orders also have interfered with the
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court’s management of its docket, multiplied these proceedings, and have squandered the court’s

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resources.

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The third factor and fourth factors, risk of prejudice to the other parties and the public

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policy favoring disposition of cases on their merits, also weigh in favor of terminating sanctions.

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Given that Mr. Dollar is responsible for moving this case forward, his failure to do so has caused

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delay and is prejudicial to the defendants, who are entitled to conduct discovery, proceed to trial,

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and obtain a rightful decision in this case. Finally, sanctions less drastic than terminating sanctions

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are unavailable because Mr. Dollar has failed to comply with multiple court orders. Given Mr.

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Dollar’s failure to comply with past orders, the court has no reason to believe he would comply

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with future orders. Mr. Dollar was warned that failure to comply with the court’s order to show

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cause would result in a recommendation that dismissal sanctions be entered against him.

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Given that these factors all weigh in favor of terminating sanctions, the court will

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recommend that Mr. Dollar’s complaint be stricken and that his case be dismissed as a sanction for

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his failure to comply with the court’s orders.

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III.

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RECOMMENDATION
IT IS THEREFORE RECOMMENDED that Plaintiff George Dollar’s Complaint (ECF No.

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3) be STRICKEN and that his case be dismissed with prejudice.

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IV.

NOTICE

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This report and recommendation is submitted to the United States district judge assigned to

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this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation may

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file a written objection supported by points and authorities within fourteen days of being served

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with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may

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waive the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir.

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1991).

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DATED: August 23, 2017

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge
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