Middleton v. Citibank, N.A. Inc.

Filing 84

ORDER DISMISSING CASE With Prejudice. All Outstanding Motions are denied as moot. Signed by Judge Richard F. Boulware, II on 12/17/2018. (Copies have been distributed pursuant to the NEF - JM)

Download PDF
1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 7 ERVIN MIDDLETON, 8 Plaintiff, Case No. 2:16-cv-00622-RFB-NJK ORDER 9 v. 10 11 12 CITIBANK, NA., Defendant. 13 14 15 In response to the Plaintiff’s filing of the “2nd and Final Notice of Fault and Opportunity to Cure” [ECF No. 79], the Court dismisses this action with prejudice as a sanction for the Plaintiff 16 17 disregarding this Court’s order and authority. 18 The Court had previously and explicitly warned Plaintiff not to file documents purporting 19 to carry legal dispositive legal authority. On August 15, 2018, Plaintiff filed a document, “Writ 20 of Error,” that purported to be an order from this Court. On September 14, 2018, Plaintiff filed a 21 document, “Notice by Court Order” which also purported to be some type of order of the Court. 22 23 The Court struck both of these documents on September 30, 2018. [ECF No. 74] In its Order the 24 Court explicitly warned Plaintiff that if he filed any other documents purporting to have the 25 authority of this Court that his case would be dismissed. Nonetheless, on October 15, 2018, 26 Plaintiff filed a document entitled “2nd and Final Notice of Fault and Opportunity To Cure.” [ECF 27 28 No. 79]. This documents purports to be an order of “Fault” which “settles [Plaintiff’s] demand in 1 my favor.” This is precisely the type of document that the Plaintiff was warned not to file. 2 3 The Court recognizes that “dismissal is a harsh penalty and, therefore, it should only be imposed in extreme circumstances.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), as 4 5 amended (May 22, 1992) (citation omitted). In applying the five-factor test set forth by the Ninth 6 Circuit, the Court finds that this case presents the extreme circumstances warranting dismissal. Id. 7 at 1260-61 (“In determining whether to dismiss a case for failure to comply with a court order the 8 district court must weigh five factors including: ‘(1) the public’s interest in expeditious resolution 9 of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; 10 11 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 12 drastic alternatives.’”). The Court finds that these factors weigh in favor of dismissal. First, the 13 Court finds that the Plaintiff’s continued filing of erroneous, irrelevant and improper documents 14 has and will delay the litigation and resolution of this case on the merits. Second, the Court cannot 15 effectively manage its docket with the Plaintiff’s erroneous and improper filings. Third, the 16 17 Defendants are prejudiced by the delay in the litigation and by the nonresponsive and irrelevant 18 filings of the Plaintiff. Fourth, the Court finds that there are no less drastic alternatives, since 19 Plaintiff filed the latest document even after being warned about a possible dismissal for any 20 additional improper filings. The Court therefore finds dismissal to be appropriate in this case. 21 The Court also rejects the Plaintiff’s request that it recuse itself. [ECF No. 76] The 22 23 Plaintiff has not identified an extrajudicial basis for such recusal. Toth v. TransWorld Airlines, 24 862 F.2d 1381, 1388 (9th Cir. 1988). Bias cannot arise from a disagreement with a court’s rulings 25 in a case. Id. 26 /// 27 /// 28 -2- 1 Accordingly, 2 IT IS ORDERED that this case is dismissed with prejudice. The Clerk of Court is 3 instructed to close this case. 4 5 IT IS FURTHER ORDERED that all outstanding motions are denied as moot. 6 7 DATED this 17h day of December, 2018. 8 ____________________________________ RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?