McCoy v. Ferch et al

Filing 13

ORDERED adjudged and decreed that the Report and Recommendation of Magistrate Judge Carl W. Hoffman, Jr. (ECF No. 11 ) is accepted and adopted in its entirety. Plaintiff's case is dismissed without prejudice for failure to comply with the Court's order (ECF No. 9 ), and the Clerk of the Court is instructed to close this case. Signed by Judge Miranda M. Du on 5/29/2019. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LEROY HALL MCCOY,

Case No. 2:18-cv-00956-MMD-CWH
Plaintiff,

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v.

ORDER ADOPTING AND ACCEPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
CARL W. HOFFMAN, JR.

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ASHLEY FERCH, et al.,
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Defendants.
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Before the Court is the Report and Recommendation of United States Magistrate

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Judge Carl W. Hoffman, Jr. (“R&R”) (ECF No. 11), recommending that the Court dismiss

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Plaintiff’s case for failure to comply with the Court’s order (ECF No. 9) to file an amended

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complaint. Plaintiff had until April 25, 2019, to file an objection. (ECF No. 11.) To date, no

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objection to the R&R has been filed.

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” Id. Where a party fails to object, however,

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the court is not required to conduct “any review at all . . . of any issue that is not the

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subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth

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Circuit has recognized that a district court is not required to review a magistrate judge’s

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report and recommendation where no objections have been filed. See United States v.

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Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

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employed by the district court when reviewing a report and recommendation to which no

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objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.

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Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that

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district courts are not required to review “any issue that is not the subject of an

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objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then

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the court may accept the R&R without review. See, e.g., Johnstone, 263 F. Supp. 2d at

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1226 (accepting, without review, a magistrate judge’s recommendation to which no

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objection was filed).

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Nevertheless, this Court finds it appropriate to engage in a de novo review to

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determine whether to adopt Magistrate Judge Hoffman’s R&R. The Court finds good

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cause to adopt the Magistrate Judge’s R&R in full because Plaintiff failed to comply with

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the Court’s order. Plaintiff had until February 15, 2019, to file an amended complaint and

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has not done so. (ECF No. 9 at 5.) While the copy of Magistrate Judge Hoffman’s R&R

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sent to Plaintiff was returned undeliverable, the order requiring Plaintiff to file an

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amended complaint by February 15, 2019, was not. (See ECF Nos. 9, 11, 12.) Plus,

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Plaintiff has an ongoing obligation to notify the Court of any change of mailing address.

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LR IA 3-1 (“An attorney or pro se party must immediately file with the court written

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notification of any change of mailing address . . . . Failure to comply with this rule may

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result in the dismissal of the action . . . .”).

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

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exercise of that power, they may impose sanctions including, where appropriate . . .

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dismissal” of a case. Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th

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Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to

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prosecute an action, failure to obey a court order, or failure to comply with local rules.

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See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance

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with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for

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failure to comply with an order requiring amendment of complaint); Carey v. King, 856

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F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule
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requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal

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Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order);

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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of

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prosecution and failure to comply with local rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey

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a court order, or failure to comply with local rules, the court must consider several

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factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need

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to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

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favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833

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F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the Court finds that the first two factors, the public’s interest in

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expeditiously resolving this litigation and the Court’s interest in managing the docket,

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weigh in favor of dismissal. The third factor, risk of prejudice to defendant, also weighs in

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favor of dismissal, since a presumption of injury arises from the occurrence of

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unreasonable delay in filing a pleading ordered by the court or prosecuting an action.

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See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public

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policy favoring disposition of cases on their merits—is greatly outweighed by the factors

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in favor of dismissal discussed herein. Finally, a court’s warning to a party that his failure

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to obey the court’s order will result in dismissal satisfies the “consideration of

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alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33;

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Henderson, 779 F.2d at 1424. The Court’s order requiring Plaintiff to file an amended

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complaint within 30 days expressly stated: “If plaintiff chooses to file an amended

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complaint, plaintiff must file the amended complaint within 30 days from the date of this

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order. Failure to comply with this order will result in a recommendation that this action be

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dismissed.” (ECF No. 9 at 5.) Thus, Plaintiff had adequate warning that dismissal would

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result from his noncompliance with the Court’s order to file an amended complaint.

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///
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It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge Carl W. Hoffman, Jr. (ECF No. 11) is accepted

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and adopted in its entirety. Plaintiff’s case is dismissed without prejudice for failure to

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comply with the Court’s order, and the Clerk of the Court is instructed to close this case.

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DATED THIS 29th day of May 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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