Smith v. Limerick
Filing
180
OPINION AND ORDER: Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 41(b) 170 is GRANTED and this case is DISMISSED with prejudice. All other pending motions are DENIED as MOOT. Final judgment shall be entered accordingly. Signed on 6/16/2023 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
JANE SMITH,
Civ. No. 1:17-cv-00712-AA
Plaintiff,
OPINION & ORDER
v.
JILL LIMERICK,
Defendant.
_______________________________________
AIKEN, District Judge.
This case comes before the Court on Defendant Jill Limerick’s Motion to
Dismiss pursuant to Federal Rule of Civil Procedure 41(b). ECF No. 170. The Court
concludes that this motion is suitable for resolution without oral argument. For the
reasons set forth below, the motion is GRANTED and this case is DISMISSED with
prejudice.
DISCUSSION
Federal Rule of Civil Procedure 41(b) provides that if the plaintiff fails to
comply with a court order, “a defendant may move to dismiss the action or any claim
against it.”
Fed. R. Civ. P. 41(b). Unless the court’s order states otherwise, a
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dismissal under Rule 41(b) “operates as an adjudication on the merits.” Id. “In
determining whether to dismiss a case for failure to comply with a court order, district
courts must weigh five factors: (1) the public interest; (2) the court’s need to manage
the docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring
disposition of cases on their merits; and (5) the availability of less drastic
alternatives.” Bautista v. Los Angeles Cnty., 216 F.3d 837, 841 (9th Cir. 2000).
“Although it is preferred, it is not required that the district court make explicit
findings in order to show that it has considered these factors[.]” Applied
Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 n.2 (9th Cir. 2019) (internal
quotation marks and citation omitted).
The threshold inquiry is whether Plaintiff has failed to follow an order of the
Court. This case has a long and contentious history which will not be recounted here
except as necessary. The case was originally assigned to Magistrate Judge Clarke.
On January 27, 2022, Judge Clarke denied Plaintiff’s motion to amend her complaint,
noting that the proposed amendment was untimely, as well as frivolous and lacking
merit. ECF No. 149. Judge Clarke transferred the case to this Court. On March 9,
2022, shortly after the case was reassigned, Plaintiff filed another motion to amend
the complaint. ECF No. 154. The Court denied the motion by minute order, noting
that Plaintiff’s motion was “substantially identical to her previous motion, which was
properly denied by Judge Clarke as untimely, frivolous, and without merit,” and that
“Plaintiff’s attempt to relitigate that motion following reassignment of the case to this
Court is both frivolous and in bad faith.” ECF No. 157. Plaintiff was cautioned that
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“the filing of further bad faith motions will result in the imposition of sanctions.” ECF
No. 157.
On January 11, 2013, the Court ordered Plaintiff to file a conforming complaint
by February 15, 2023. ECF No. 162. Plaintiff filed her Fifth Amended Complaint on
February 15, 2023. ECF No. 163. On March 2, 2023, the Court held a telephonic
status conference at which it told Plaintiff that the “Fifth Amended Complaint does
not comply with the Court’s order as it contains previously dismissed claims.” ECF
No. 166. Plaintiff was “ordered to submit, within 30 days of the date of this Order, a
Sixth Amended Complaint containing only the surviving claims for trespass, trespass
to chattels, and conversion consistent with the previous rulings of Judge Clarke and
this Court.” ECF No. 166. This order was reiterated in another status conference on
March 9, 2023, with the due date for the conforming complaint fixed at April 3, 2023.
ECF No. 167. On April 3, 2023, Plaintiff filed her Sixth Amended Complaint but,
contrary to the Court’s express directions, the Complaint contains additional claims
and defendants.
ECF No. 168.
Defendant’s Motion to Dismiss, ECF No. 170,
followed.
As described above, the Court repeatedly ordered Plaintiff to file a conforming
complaint limited to the claims and defendants remaining after this Court and Judge
Clarke’s rulings on previous motions to dismiss. Plaintiff has persisted in filing
amended complaints with additional claims and defendants. The Court concludes
that Plaintiff has failed to comply with the orders of the Court, despite repeated
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admonitions and multiple opportunities to comply. The Court therefore turns to
consideration of the factors governing dismissal under Rule 41(b).
With respect to the first two factors, the public interest and the court’s need to
manage its docket, Plaintiff’s conduct and her persistent refusal to abide by the prior
rulings of this Court have resulted in substantial delays in the resolution of this case.
The Court concludes that the first two factors weigh in favor of dismissal.
The third factor, prejudice to the defendant, weighs sharply in favor of
dismissal. Plaintiff’s conduct in litigation and her refusal to file a proper conforming
complaint have resulted in considerable wasted time and unnecessary expense for
Defendant.
The fourth factor, the public policy favoring disposition of cases on their merits,
will generally weigh against dismissal under Rule 41(b).
The Court concludes,
however, that this factor is outweighed by the other four factors.
The final factor requires a court to consider the availability of less drastic
alternatives. While a court should impose lesser sanctions whenever possible, it is
appropriate to reject lesser sanctions when it is anticipated there will be continued
misconduct. United States for Use and Benefit of Wiltec Guam, Inc. v. Kahaluu Const.
Co., Inc., 857 F.2d 600, 604 (9th Cir. 1988). Here, Plaintiff has a long-established
pattern of dilatory and noncompliant filings that began when she was a pro se party.
Plaintiff is now represented by counsel, but this has not improved her conduct in
litigation.1
Plaintiff has been given warnings, including warnings about the
1
At the Court’s last status conference, ECF No. 167, Plaintiff interrupted the proceedings to announce that she was
firing her attorney before giving a lengthy monologue. Plaintiff seems to have reconsidered her decision to fire her
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possibility of sanctions, without apparent effect. Plaintiff has been given repeated
and detailed instruction and multiple opportunities to comply with the Court’s orders
and has declined to do so. The Court concludes that less drastic alternatives to
dismissal are extremely unlikely to improve Plaintiff’s conduct or allow this litigation
to proceed. Accordingly, the Court concludes that the fifth factor weighs in favor of
dismissal.
The Court therefore concludes that dismissal is warranted under Rule 41(b)
and Defendant’s Motion to Dismiss is GRANTED.
CONCLUSION
Defendants’ Motion to Dismiss pursuant to Federal Rule of Civil Procedure
41(b), ECF No. 170, is GRANTED and this case is DISMISSED with prejudice. All
other pending motions are DENIED as MOOT. Final judgment shall be entered
accordingly.
It is so ORDERED and DATED this
16th
day of June 2023.
/s/Ann Aiken
ANN AIKEN
United States District Judge
attorney in the intervening weeks, as no motion to withdraw has been filed by Plaintiff’s counsel and Plaintiff’s
latest filings bear her attorney’s signature block.
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