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)

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