Wood v. Eikenberry

Filing 19

ORDER -It is therefore ordered that this action is dismissed without prejudice based on Woods failure to timely respond to the Court's OSC and because the information before the Court suggests that venue is improper in this District. It is further ordered that Woods pending motions ECF Nos. 12 , 13 , 16 are denied as moot. The Clerk of Court is directed to enter judgment accordingly and close this case. No other documents may be filed in this now-closed case. Signed by Chief Judge Miranda M. Du on 7/8/2024. (Copies have been distributed pursuant to the NEF - GA)

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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 ANDREA WOOD, Case No. 3:24-cv-00170-MMD-CLB Plaintiff, 7 ORDER v. 8 KEVIN EIKENBERRY, et al., 9 Defendants. 10 11 Plaintiff Andrea Wood filed a document titled ‘Fraud Claims to Commit Grand Theft’ 12 regarding a lien placed on a property in Moraga, California (ECF No. 1-1) that United 13 States Magistrate Judge Carla L. Baldwin construed as a complaint alleging violations of 14 15 Wood’s Constitutional rights under 42 U.S.C. § 1983 (ECF No. 4). In compliance with Judge Baldwin’s order (see id.), Wood paid the filing fee (ECF No. 5) and filed several 16 other motions (ECF Nos. 7, 8, 12, 13). Judge Baldwin denied two of those motions. (ECF 17 No. 10.) As this appeared (and appears) to be a dispute about a property in Northern 18 California involving defendants exclusively from Northern California, the Court ordered 19 Wood to show cause why venue was proper in this District within 14 days or face 20 dismissal. (ECF No. 15 (“OSC”).) While Wood proceeded to file another motion (ECF No. 21 16) and a certificate of interested parties (ECF No. 18), she did not timely respond to the 22 Court’s OSC. In line with the Court’s warning in the OSC—and as further explained 23 below—the Court will accordingly dismiss this case without prejudice. 24 District courts have the inherent power to control their dockets and “[i]n the 25 exercise of that power, they may impose sanctions including, where appropriate . . . 26 27 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 28 order. See Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (affirming 1 dismissal for failure to comply with court order).1 In determining whether to dismiss an 2 action on these grounds, the Court must consider: (1) the public’s interest in expeditious 3 resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice 4 to the defendants; (4) the public policy favoring disposition of cases on their merits; and 5 (5) the availability of less drastic alternatives. See In re Phenylpropanolamine Prod. Liab. 6 Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone, 833 F.2d at 130). 7 The first two factors, the public’s interest in expeditiously resolving this litigation 8 and the Court’s interest in managing its docket, weigh in favor of dismissing it. The third 9 factor, risk of prejudice to defendants, also weighs in favor of dismissal because a 10 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading 11 ordered by the court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 12 524 (9th Cir. 1976). And the fourth factor—the public policy favoring disposition of cases 13 on their merits—is greatly outweighed by the factors favoring dismissal. 14 The fifth factor requires the Court to consider whether less drastic alternatives can 15 be used to correct the party’s failure that brought about the Court’s need to consider 16 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 17 that considering less drastic alternatives before the party has disobeyed a court order 18 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 19 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 20 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 21 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 22 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 23 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 24 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 25 F.2d 1421, 1424 (9th Cir. 1986) (citation omitted). 26 /// 27 28 1And as stated in the OSC, the Court may dismiss this case for improper venue if Wood fails—as she has—to satisfactorily respond to it. (ECF No. 15 (citing Zhu v. Whinery, 109 F. App’x 137, 138 (9th Cir. 2004) (citation omitted)).) 2 1 Because this action cannot realistically proceed unless and until Wood responds 2 to the Court’s OSC, the only alternative is to enter another order setting another deadline. 3 But the information before the Court both suggests that she will not, and that even if she 4 did, venue would not be proper in this Court. First, Plaintiff has filed two documents since 5 the Court issued the OSC without responding to it. (ECF Nos. 16, 18.) This suggests that 6 Wood does not intend to respond to the OSC. Second, the documents Wood filed after 7 the Court issued the OSC argue (consistent with the documents she filed before the Court 8 issued the OSC) this case is about a property in Northern California involving only 9 defendants who reside in Northern California. (ECF No. 16 at 1 (stating there are up to 10 three defendants), 2 (indicating the dispute is about a property in Moraga, California), 5 11 (listing addresses in Walnut Creek and San Leandro, California); ECF No. 18 at 2 (listing 12 addresses in Walnut Creek and San Leandro, California).) Thus, even considering the 13 information in Wood’s filings that post-date the OSC, venue does not appear proper in 14 this District. The fifth factor accordingly favors dismissal. 15 16 In sum, having thoroughly considered these dismissal factors, the Court finds that they weigh in favor of dismissal. 17 It is therefore ordered that this action is dismissed without prejudice based on 18 Wood’s failure to timely respond to the Court’s OSC and because the information before 19 the Court suggests that venue is improper in this District. 20 21 22 23 24 It is further ordered that Wood’s pending motions (ECF Nos. 12, 13, 16) are denied as moot. The Clerk of Court is directed to enter judgment accordingly and close this case. No other documents may be filed in this now-closed case. DATED THIS 8th Day of July 2024. 25 26 27 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 28 3

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