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)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 11 In Re: Case No. 3:16-cv-00185-MMD WILLIAM MARTIN TEZAK, Aka BILL TEZAK, Debtor. 12 13 14 15 BK Case No. 16-50124-gwz Chapter 13 WILLIAM MARTIN TEZAK, Appellant, v. ORDER OF DISMISSAL KEVIN E. MONSON, 16 Appellee. 17 18 On April 6, 2017, the Court issued an Order to Show Cause, directing Appellant to 19 show cause as to why this appeal should not be dismissed for Appellant’s failure to file 20 his opening brief in compliance with the Court’s October 31, 2016, order. (ECF No. 11.) 21 Appellant had until April 20, 2017, to respond to the Order to Show Cause. (Id.) To date, 22 Appellant has failed to respond. 23 District courts have the inherent power to control their dockets and “[i]n the 24 exercise of that power, they may impose sanctions including, where appropriate . . . 25 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 26 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 27 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 28 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance 1 with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for 2 failure to comply with an order requiring amendment of complaint); Carey v. King, 856 3 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 4 pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 5 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson 6 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and 7 failure to comply with local rules). 8 In determining whether to dismiss an action for lack of prosecution, failure to obey 9 a court order, or failure to comply with local rules, the court must consider several factors: 10 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 11 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 12 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 13 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; 14 Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 15 In the instant case, the Court finds that the first two factors, the public’s interest in 16 expeditiously resolving this litigation and the Court’s interest in managing the docket, 17 weigh in favor of dismissal. The third factor, risk of prejudice to Appellee, also weighs in 18 favor of dismissal, since a presumption of injury arises from the occurrence of 19 unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See 20 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor ― public policy 21 favoring disposition of cases on their merits ― is greatly outweighed by the factors in 22 favor of dismissal discussed herein. Finally, a court’s warning to a party that his failure to 23 obey the court’s order will result in dismissal satisfies the “consideration of alternatives” 24 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d 25 at 1424. The Court’s Order to Show Cause directs Appellant to show cause why this 26 appeal should not be dismissed. Appellant therefore has adequate warning that failure to 27 respond will result in dismissal of his appeal. 28 /// 2 1 2 3 It is therefore ordered that this appeal is dismissed. The Clerk is directed to close this case. DATED THIS 25th day of April 2017. 4 5 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 6 7 8 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?