Brockington v. Wolfson et al

Filing 12

ORDER adopting 10 Report and Recommendations. This case is DISMISSED. Signed by Judge Jennifer A. Dorsey on 9/15/2022. (Copies have been distributed pursuant to the NEF - JQC) (Main Document 12 replaced on 9/15/2022) (JQC).

Case 2:22-cv-00816-JAD-NJK Document 12 Filed 09/15/22 Page 1 of 3

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 Darnell Quentin Brockington,
4

Plaintiff

5 v.
6 Steven B. Wolfson, et al.,
7

Case No.: 2:22-cv-00816-JAD-NJK
Order Adopting Report and
Recommendation and Dismissing Action
[ECF No. 10]

Defendants

8

After plaintiff Darnell Quentin Brockington filed this action without paying the required

9 filing fee or applying to proceed in forma pauperis, the court ordered him to take such action by
10 August 11, 2022, or face dismissal. 1 Brockington did nothing, so the magistrate judge
11 recommends that this case be dismissed without prejudice. 2 The deadline for the plaintiff to
12 object to that recommendation was September 12, 2022, and he filed no objection and did not
13 ask to extend the deadline to do so. “[N]o review is required of a magistrate judge’s report and
14 recommendation unless objections are filed.” 3 Having reviewed the report and recommendation,
15 I find good cause to adopt it, and I do.
16

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

17 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. 4 A
18 court may dismiss an action based on a party’s failure to obey a court order or comply with local
19
20
21
22

1

ECF No. 7.

2

ECF No. 10.

3

Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003); see also Thomas v. Arn, 474
23 U.S. 140, 150 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
4

Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986).

Case 2:22-cv-00816-JAD-NJK Document 12 Filed 09/15/22 Page 2 of 3

1 rules.5 In determining whether to dismiss an action on this ground, the court must consider: (1)
2 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its
3 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of
4 cases on their merits; and (5) the availability of less drastic alternatives.6
5

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

6 court’s interest in managing its docket, weigh in favor of dismissal of the plaintiff’s claims. The
7 third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a
8 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an
9 action.7 The fourth factor—the public policy favoring disposition of cases on their merits—is
10 greatly outweighed by the factors favoring dismissal.
11

The fifth factor requires the court to consider whether less drastic alternatives can be used

12 to correct the party’s failure that brought about the court’s need to consider dismissal.8 Courts
13 “need not exhaust every sanction short of dismissal before finally dismissing a case, but must
14 explore possible and meaningful alternatives.”9 Because this court cannot operate without
15
16

5

Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to
17 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal
for lack of prosecution and failure to comply with local rules).
18 6 In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting
Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)).
19 7
See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).
20

8

Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less
drastic alternatives before the party has disobeyed a court order does not satisfy this factor);
21 accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that “the
persuasive force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of last drastic
22 alternatives prior to disobedience of the court’s order as satisfying this element[,]” i.e., like the
“initial granting of leave to amend coupled with the warning of dismissal for failure to
23 comply[,]” have been “eroded” by Yourish).
9

Henderson, 779 F.2d at 1424.
2

Case 2:22-cv-00816-JAD-NJK Document 12 Filed 09/15/22 Page 3 of 3

1 collecting reasonable fees, and litigation cannot progress without a plaintiff’s compliance with
2 court orders, the only alternative is to enter a second order setting another deadline. But issuing
3 a second order will only delay the inevitable and further squander the court’s finite resources.
4 Setting another deadline is not a meaningful alternative given these circumstances. So the fifth
5 factor favors dismissal.
6

Having thoroughly weighed these dismissal factors, I find that they weigh in favor of

7 dismissal, IT IS THEREFORE ORDERED that the magistrate judge’s report and
8 recommendation [ECF No. 10] is ADOPTED in its entirety. This case is DISMISSED. The
9 Clerk of Court is directed to ENTER JUDGMENT ACCORDINGLY and CLOSE THIS CASE.
10

_______________ ________________
U.S. District Judge Jennifer A. Dorsey
Dated: September 15, 2022

11
12
13
14
15
16
17
18
19
20
21
22
23

3