Tezak v. Monson

Filing 12

ORDER that this appeal is dismissed pursuant to ECF No. 11 Order to Show Cause. Clerk direct to close case. Signed by Judge Miranda M. Du on 04/25/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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In Re:

Case No. 3:16-cv-00185-MMD

WILLIAM MARTIN TEZAK,
Aka BILL TEZAK,
Debtor.

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BK Case No. 16-50124-gwz
Chapter 13

WILLIAM MARTIN TEZAK,
Appellant,
v.

ORDER OF DISMISSAL

KEVIN E. MONSON,

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Appellee.

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On April 6, 2017, the Court issued an Order to Show Cause, directing Appellant to

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show cause as to why this appeal should not be dismissed for Appellant’s failure to file

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his opening brief in compliance with the Court’s October 31, 2016, order. (ECF No. 11.)

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Appellant had until April 20, 2017, to respond to the Order to Show Cause. (Id.) To date,

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Appellant has failed to respond.

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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 Los Angeles, 782 F.2d 829, 831

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(9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure

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to 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 requiring

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pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833

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

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

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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 factors:

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

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

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

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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;

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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 Appellee, 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. See

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

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favoring disposition of cases on their merits ― is greatly outweighed by the factors in

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

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

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requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d

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at 1424. The Court’s Order to Show Cause directs Appellant to show cause why this

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appeal should not be dismissed. Appellant therefore has adequate warning that failure to

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respond will result in dismissal of his appeal.

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It is therefore ordered that this appeal is dismissed. The Clerk is directed to close
this case.
DATED THIS 25th day of April 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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