Arpino v. Cherry et al

Filing 20

ORDER that this case is dismissed without prejudice; Clerk directed to enter judgment. Signed by Judge Miranda M. Du on 5/16/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOHN FRANCIS ARPINO,

Case No. 3:17-cv-00527-MMD-VPC
Plaintiff,

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ORDER

v.
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CHIEF JUSTICE MICHAEL A. CHERRY,
et al.,
Defendants.

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This Court’s April 10, 2018 Order stated that “[t]his action will be dismissed without

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prejudice unless Plaintiff pays the $400.00 filing fee in full within thirty (30) days of entry

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of this order.” (ECF No. 12 at 5.) To date, Plaintiff has not paid the filing fee or otherwise

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responded to the Court’s April 10, 2018 Order.

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

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of that power, they may impose sanctions including, where appropriate . . . dismissal” of a

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case. Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986). A court

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may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See Ghazali v. Moran,

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46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an

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order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.

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1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court

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apprised of address); Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)

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(dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421,

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1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local

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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; see also Ghazali, 46 F.3d

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at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130.

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Here, the Court finds that the first two factors—the public’s interest in expeditiously

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resolving this litigation and the Court’s interest in managing the docket—weigh in favor of

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dismissal. The third factor—risk of prejudice to the defendant—also weighs in favor of

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dismissal, since a presumption of injury arises from the occurrence of unreasonable delay

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in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air

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West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring

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disposition of cases on their merits—is greatly outweighed by the factors in favor of

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

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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 April 10, 2018 Order expressly stated that “[t]his action will be

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dismissed without prejudice unless Plaintiff pays the $400.00 filing fee in full within thirty

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(30) days of entry of this order.” (ECF No. 12 at 5.) Thus, Plaintiff had adequate warning

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that dismissal would result from his noncompliance with the Court’s Order to pay the filing

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fee.

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It is therefore ordered that this case is dismissed without prejudice based on
Plaintiff’s failure to pay the filing fee in compliance with this Court’s April 10, 2018 Order.

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It is further ordered that the Clerk of Court enter judgment accordingly.

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DATED THIS 16th day of May 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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