Dominguez v. Aria Resort and Casino

Filing 25

ORDER re 24 Order on Motion to Dismiss, Case terminated. Signed by Chief Judge Gloria M. Navarro on 1/26/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ELIZABETH DOMINGUEZ, 4 5 6 7 Plaintiff, vs. ARIA RESORT & CASINO LAS VEGAS, Defendant. 8 ) ) ) ) ) ) ) ) ) Case No.: 2:15-cv-01437-GMN-GWF ORDER 9 10 Pending before the Court is the case of Dominguez v. Aria Resort and Casino, (2:15-cv- 11 1437-GMN-GWF). On December 23, 2016, the Court issued an Order dismissing Plaintiff 12 Elizabeth Dominguez’s (“Plaintiff’s”) Complaint. (ECF No. 24). In that Order, the Court 13 granted leave for Plaintiff to file a second amended complaint on or before January 6, 2017, to 14 correct deficiencies in two of its claims. (Id.). However, Plaintiff has since failed to file an 15 amended complaint or request an extension of time to do so. For the reasons set forth below, 16 the Court will dismiss Plaintiff’s claims with prejudice. 17 18 I. DISCUSSION In its prior Order, the Court ruled that Plaintiff failed to show that the Court had 19 jurisdiction in this case. (Id. at 3:8-13). Despite the Court’s granting leave for Plaintiff to 20 provide evidence of Defendant Aria Resort & Casino Las Vegas’s (“Defendant’s”) citizenship, 21 Plaintiff has failed to take any action whatsoever in this case. 22 The Court is at a loss in cases, such as this one, in which a plaintiff fails to participate in 23 the judicial process and does not pursue its claims or even request an extension. However, the 24 Court has an obligation to promote justice by allocating judicial resources to cases with 25 ongoing disputes and active parties. Page 1 of 4 1 Federal Rule of Civil Procedure 41(b) allows for the dismissal of an action based on a 2 party’s failure to obey an order of the Court.1 The Ninth Circuit has specifically held that this 3 rule may be applied when a plaintiff fails to file an amended complaint pursuant to a court- 4 ordered deadline. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). “In 5 determining whether to dismiss a case for failure to comply with a court order the district court 6 must weigh five factors including: (1) the public’s interest in expeditious resolution of 7 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; 8 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 9 drastic alternatives.” Id. at 1260-61; see also Thompson v. Housing Auth. of City of Los 10 Angeles, 782 F.2d 829, 831 (9th Cir. 1986); Henderson v. Duncan, 779 F.2d 1421, 1423 (9th 11 Cir. 1986). The Court will consider each of these factors in turn. 12 1. 13 The Ninth Circuit has consistently held that “the public’s interest in expeditious Public Interest 14 resolution of litigation always favors dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th 15 Cir. 2002) (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). In this 16 case, Plaintiff has not only failed to file an amended complaint pursuant to the Court’s explicit 17 deadline, but has also failed to request an extension or explain its failure to the Court. 18 Therefore, this factor weighs in favor of dismissal. The Court’s Need to Manage its Docket 19 2. 20 The delays caused by Plaintiff’s failure to amend its claims have already consumed time 21 and resources that the Court could have devoted to other cases. The Court’s resources are best 22 allocated to actions with active parties seeking to resolve their claims under the law. Thus, this 23 factor also weighs in favor of dismissal. 24 25 1 Though rule 41(b) refers to a defendant’s motion for dismissal, the Supreme Court has long held that district courts have the power to dismiss actions sua sponte based on a plaintiff’s failure to comply with a court order. See, e.g., Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962). Page 2 of 4 1 3. 2 The Ninth Circuit recognizes that the risk of prejudice must be considered with reference Risk of Prejudice to Defendant 3 to “the plaintiff’s reason for defaulting.” Pagtalunan, 291 F.3d at 642. However in this matter, 4 Plaintiff has not offered any explanation for its failure to comply with the Court’s order. In its prior Order, the Court clearly identified the jurisdictional deficiencies in Plaintiff’s 5 6 claim that she could attempt to correct in an amended complaint. (Order 3:8-13, ECF No. 24). 7 Rather than simply revise its Complaint to correct these deficiencies, Plaintiff has taken no 8 action in this case whatsoever. “Unnecessary delay inherently increases the risk that witnesses’ memories will fade and 9 10 evidence will become stale.” Pagtalunan, 291 F.3d at 643. Considering Plaintiff’s ongoing 11 failure to file an amended complaint without offering an explanation, the Court finds that the 12 delay in this matter is unreasonable, and therefore this factor weighs in favor of dismissal. 13 4. 14 Public policy and the preferences of this Court hold that legal claims should be resolved 15 Public Policy Favoring Disposition on the Merits on their merits whenever possible. This factor weighs against dismissal. 16 5. 17 In an attempt to avoid dismissal with prejudice, the Court granted Plaintiff fourteen days Availability of Less Drastic Alternatives 18 in which to file an amended complaint. (Order 3:16–18). Additionally, in time that elapsed 19 since the Court issued its Dismissal Order, Plaintiff could have requested an extension or 20 otherwise clarified its position with the Court. Plaintiff has not filed an amended complaint or 21 taken any other action in this matter. Therefore, the Court has exercised less drastic 22 alternatives without success, and this factor weighs in favor of dismissal. 23 Accordingly, as four of the Ferdik factors weigh in favor of dismissal, the Court will 24 dismiss Plaintiff’s claims with prejudice. 25 /// Page 3 of 4 1 2 3 II. CONCLUSION IT IS HEREBY ORDERED that Plaintiff’s claims are DISMISSED WITH PREJUDICE. The Clerk shall enter judgment accordingly and close the case. 4 5 26 DATED this _____ day of January, 2017. 6 7 8 ___________________________________ Gloria M. Navarro, Chief Judge United States District Court 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 of 4

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