Tezak v. Monson

Filing 6

ORDER dismissing appeal; directing Clerk to close case. Signed by Judge Miranda M. Du on 5/18/2016. (Copies have been distributed pursuant to the NEF - KR)

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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,

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Debtor.
WILLIAM MARTIN TEZAK,

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BK Case No. 16-50124-gwz
Chapter 13

Appellant,
v.

ORDER

KEVIN E. MONSON,
Appellee.

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On April 28, 2016, the Court issued an Order to Show Cause, directing Appellant

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

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timely file the designation of items to be included in the record on appeal and a

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statement of the issues to be presented as required under Rule 8009(a)(1) of the

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Federal Rules of Bankruptcy Procedure. (ECF No. 5.) Appellant had until May 13, 2016,

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to respond to the Order to Show Cause. (Id.) To date, 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,

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831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s

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

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

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

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1992) (dismissal for failure to comply with an order requiring amendment of complaint);

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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply

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with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v.

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U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply

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with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal

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for lack of 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

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obey 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,

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833 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 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.

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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

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

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his failure 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 to Show Cause directs Appellant to

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show cause why this appeal should not be dismissed. Appellant therefore has adequate

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warning that failure to 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 18th day of May 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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