Amanda Jean McCarley v. Next First Insurance Agency, et al.

• Court: District Court, D. Nevada
• Decided: September 24, 2025
• Docket: 2:24-cv-01809
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Amanda Jean McCarley, Case No. 2:24-cv-01809-JAD-DJA 6 Plaintiff, 7 Report and Recommendation v. 8 Next First Insurance Agency, et al., 9 Defendants. 10 11 On December 31, 2024, the Court denied Plaintiff’s application to proceed in forma 12 pauperis (meaning, without paying the filing fee) and ordered her to provide certain information 13 regarding her bankruptcy. (ECF No. 6). The Court gave Plaintiff until February 20, 2025, to do 14 the following: 15 • If her causes of action are exempt from the bankruptcy estate or the bankruptcy trustee has abandoned them: (1) file a renewed 16 application to proceed in forma pauperis or pay the filing fee; and 17 (2) file a declaration by the bankruptcy trustee that McCarley has disclosed her causes of action to the trustee and the causes of action 18 are exempt and/or the bankruptcy trustee has abandoned them. OR 19 • If her causes of action are not exempt from the bankruptcy estate or 20 the bankruptcy trustee has not abandoned them: (1) file a renewed application to proceed in forma pauperis or pay the filing fee; and 21 (2) file a motion to substitute the bankruptcy trustee into this case; and (3) file a declaration by the bankruptcy trustee that McCarley 22 has disclosed her causes of action to the trustee and the causes of action are not exempt and/or the bankruptcy trustee has not 23 abandoned them. 24 (ECF No. 6 at 3). 25 26 Plaintiff later moved to extend that deadline, which motion the Court granted, requiring 27 Plaintiff to comply on or before March 24, 2025. (ECF No. 8). Plaintiff missed that deadline. 1 On August 18, 2025, the Court entered an order to show cause, noting that Plaintiff had 2 neither provided the Court-ordered information regarding her bankruptcy, nor filed a renewed 3 application to proceed in forma pauperis, or paid the filing fee. (ECF No. 16). The Court 4 therefore ordered Plaintiff to show cause why the Court should not recommend dismissal of her 5 case for her failure to comply with the Court’s order. It gave her until September 17, 2025, to 6 comply. The Court warned Plaintiff that “[f]ailure to [timely comply with the order] will result in 7 the recommended dismissal of Plaintiff’s case without prejudice. See Fed. R. Civ. P. 41(b).” 8 Plaintiff has also missed that deadline and, to date, has not filed anything further on the docket. 9 So, the Court recommends dismissal of this case without prejudice. A dismissal without 10 prejudice allows Plaintiff to refile a case with the Court, under a new case number. 11 Federal Rule of Civil Procedure 41(b) permits dismissal of an action for the failure to 12 prosecute or comply with rules or a court order. Fed. R. Civ. P. 41(b). In considering whether to 13 dismiss an action under Rule 41(b), courts consider: (1) the public’s interest in expeditious 14 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 15 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 16 availability of less drastic sanctions. Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1998). 17 Here, because Plaintiff has not complied with the Court’s order or taken any action in this 18 case since March 20, 2025, the Court recommends dismissal of Plaintiff’s case without prejudice. 19 See Fed. R. Civ. P. 41(b); see LR1 IA 11-8(e) (providing that the Court may, after notice and an 20 opportunity to be heard, impose any and all appropriate sanctions on a party who fails to comply 21 with any order); see Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 22 (9th Cir. 2000) (“an opportunity to be heard does not require an oral or evidentiary hearing on the 23 issue…[t]he opportunity to brief the issue fully satisfies due process requirements”). The first 24 factor weighs in favor of dismissal because the public has an interest in expeditious resolution of 25 litigation and Plaintiff’s failure to further participate in this lawsuit impedes this goal. The 26 27 1 This refers to the Local Rules of Practice for the United States District Court, District of Nevada, which can be found on the Court’s website at https://www.nvd.uscourts.gov/court- 1 second factor weighs in favor of dismissal because the Court’s need to manage its docket is 2 thwarted by Plaintiff’s failure to prosecute this action and to comply with this Court’s order. The 3 third factor weighs in favor of dismissal because the longer this case is carried on, the more 4 difficult it will be for Defendants to defend against it because witnesses’ memories will fade and 5 evidence may be lost. The fourth factor weighs in favor of Plaintiff, but does not outweigh the 6 other factors. Fifth, lesser sanctions are not available if Plaintiff will not comply with Court 7 orders. So, the Court recommends dismissing this case without prejudice. 8 9 RECOMMENDATION 10 IT IS RECOMMENDED that this case be dismissed without prejudice. 11 12 NOTICE 13 Under Local Rule IB 3-2 any objection to this Report and Recommendation must be in 14 writing and filed with the Clerk of the Court within fourteen (14) days after service of this Notice. 15 The Supreme Court has held that the courts of appeal may determine that an appeal has been 16 waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 17 140, 142 (1985) reh’g denied, 474 U.S. 1111 (1986). The Ninth Circuit has also held that 18 (1) failure to file objections within the specified time and (2) failure to properly address and brief 19 the objectionable issues could waive the right to appeal the District Court’s order and/or appeal 20 factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 21 1991); see Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983); see Miranda 22 v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012). 23 24 DATED: September 24, 2025 25 DANIEL J. ALBREGTS 26 UNITED STATES MAGISTRATE JUDGE 27