3 Kermit S. Bayless, Case No.: 2:22-cv-00335-JAD-NJK
4 Plaintiff Order Granting Defendant’s 5 v. Motion to Enforce Order and Closing Case
6 Board of Trustees of the Clark County School [ECF No. 19] District, 7 Defendant 8
9 Pro se plaintiff Kermit Bayless sued the Clark County School District (CCSD) Board of 10 Trustees for violations of his civil rights, alleging that he suffered discrimination based on his 11 race and age when the school district failed to hire him when he first applied and, after later 12 doing so, placed him on its transitional-salary schedule instead of the professional-salary table, 13 resulting in lower compensation.1 I granted the board’s motion to dismiss but gave Bayless leave 14 to amend his Title VII and ADEA claims by November 4, 2022.2 I warned him that failing to 15 file an amended complaint by the deadline could result in the complete dismissal of his case.3 16 Bayless missed the deadline, did not otherwise move to extend time, and still has not filed an 17 amended complaint. 18 On March 1, 2023, the board moved to enforce that order and dismiss and close this 19 case.4 Bayless opposes that motion and now asks for an extension of time, arguing that he 20 inadvertently missed the amendment deadline because of emotional, mental, and physical stress 21 1 ECF No. 1. 22 2 ECF No. 17. 23 3 Id. at 11. 4 ECF No. 19. 1 caused by “[i]nvestigatory [c]onferences” conducted “under the auspices of the CCSD.”5 I deny 2 Bayless’s request to extend time because he has not shown that his failure to file a third-amended 3 complaint—now more than nine months late—was due to excusable neglect. So I grant the 4 board’s motion and dismiss and close this case. 5 Discussion
6 I. Dismissal is appropriate for Bayless’s failure to file viable claims. 7 District courts have the inherent power to control their dockets and “[i]n the exercise of 8 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.6 A 9 court may dismiss an action based on a party’s failure to prosecute an action, failure to obey a 10 court order, or failure to comply with local rules.7 In determining whether to dismiss an action 11 on one of these grounds, the court must consider: (1) the public’s interest in expeditious 12 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 13 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 14 availability of less drastic alternatives.8
15 The first two factors, the public’s interest in expeditiously resolving this litigation and the 16 court’s interest in managing its docket, weigh in favor of dismissal of Bayless’s claims. He was 17 given one month to file an amended complaint with the warning that his failure to do so could 18
19 5 ECF No. 20 at 1. 20 6 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 7 Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply 21 with an order requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 22 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). 23 8 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423–24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260–61. 1 result in the complete dismissal of his case.9 Yet Bayless took no action for five months, 2 prolonging the resolution of this case. The third factor, risk of prejudice to the defendant, also 3 weighs in favor of dismissal because a presumption of injury arises from the occurrence of 4 unreasonable delay in filing a pleading ordered by the court or prosecuting an action.10 And 5 Bayless’s delay was inexcusable: aside from vague allegations of stress and medical issues that
6 he attributes to the defendant, Bayless doesn’t explain what actions he took during the relevant 7 time periods or why he failed to request additional time to amend his complaint or otherwise 8 communicate with the court.11 The fourth factor—the public policy favoring disposition of cases 9 on their merits—is greatly outweighed by the factors favoring dismissal. 10 The fifth factor requires the court to consider whether less drastic alternatives can be used 11 to correct the party’s failure that brought about the court’s need to consider dismissal.12 Courts 12 “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 13 explore possible and meaningful alternatives.”13 The only alternative here would be to enter a 14 second order setting another deadline and waiting to see whether Bayless will—or even can—
15 file a viable amended complaint. But there is nothing to indicate that further extending his 16
17 9 ECF No. 17 at 11. 10 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 18 11 See Pagtalunan v. Galaza, 291 F.3d 639, 642–43 (9th Cir. 2002) (affirming finding of 19 unreasonable delay because plaintiff failed to discuss what actions he took prior to a court order or why he failed to respond or communicate with the court about his delay). 20 12 Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before the party has disobeyed a court order does not satisfy this factor); 21 accord Pagtalunan, 291 F.3d at 643 & n.4 (9th Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of less drastic alternatives prior to 22 disobedience of the court’s order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled with the warning of dismissal for failure to comply[,]” have been 23 “eroded” by Yourish.) 13 Henderson, 779 F.2d at 1424. 1 deadline would move this case forward because Bayless has not explained how long he needs to 2 complete his amended complaint or what plans he has to do so, and he hasn’t communicated 3 with the court since his opposition brief more than five months ago. I thus find that setting 4 another deadline is not a meaningful alternative, so the fifth factor also favors dismissal. 5 II. Bayless’s belated request for an extension of time is denied because he has not 6 shown that his delay was due to excusable neglect.
7 Bayless states that the court has previously granted him an “extension of the November 4, 8 2022, deadline to March 15, 2023.”14 But the record is devoid of any motion Bayless made to 9 extend time, nor does it show any order granting him this relief. He next asks the court to 10 “consider Fe[d.] R. Civ. P. Rule 6(b)(1)(B) as a motion for excusable[neglect] relief,” citing the 11 Ninth Circuit case Pincay v. Andrews and the Supreme Court case Pioneer Investment Services 12 Co. v. Brunswick Associates.15 I liberally construe16 this argument as a motion to extend 13 Bayless’s deadline to amend his complaint.
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3 Kermit S. Bayless, Case No.: 2:22-cv-00335-JAD-NJK
4 Plaintiff Order Granting Defendant’s 5 v. Motion to Enforce Order and Closing Case
6 Board of Trustees of the Clark County School [ECF No. 19] District, 7 Defendant 8
9 Pro se plaintiff Kermit Bayless sued the Clark County School District (CCSD) Board of 10 Trustees for violations of his civil rights, alleging that he suffered discrimination based on his 11 race and age when the school district failed to hire him when he first applied and, after later 12 doing so, placed him on its transitional-salary schedule instead of the professional-salary table, 13 resulting in lower compensation.1 I granted the board’s motion to dismiss but gave Bayless leave 14 to amend his Title VII and ADEA claims by November 4, 2022.2 I warned him that failing to 15 file an amended complaint by the deadline could result in the complete dismissal of his case.3 16 Bayless missed the deadline, did not otherwise move to extend time, and still has not filed an 17 amended complaint. 18 On March 1, 2023, the board moved to enforce that order and dismiss and close this 19 case.4 Bayless opposes that motion and now asks for an extension of time, arguing that he 20 inadvertently missed the amendment deadline because of emotional, mental, and physical stress 21 1 ECF No. 1. 22 2 ECF No. 17. 23 3 Id. at 11. 4 ECF No. 19. 1 caused by “[i]nvestigatory [c]onferences” conducted “under the auspices of the CCSD.”5 I deny 2 Bayless’s request to extend time because he has not shown that his failure to file a third-amended 3 complaint—now more than nine months late—was due to excusable neglect. So I grant the 4 board’s motion and dismiss and close this case. 5 Discussion
6 I. Dismissal is appropriate for Bayless’s failure to file viable claims. 7 District courts have the inherent power to control their dockets and “[i]n the exercise of 8 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.6 A 9 court may dismiss an action based on a party’s failure to prosecute an action, failure to obey a 10 court order, or failure to comply with local rules.7 In determining whether to dismiss an action 11 on one of these grounds, the court must consider: (1) the public’s interest in expeditious 12 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 13 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 14 availability of less drastic alternatives.8
15 The first two factors, the public’s interest in expeditiously resolving this litigation and the 16 court’s interest in managing its docket, weigh in favor of dismissal of Bayless’s claims. He was 17 given one month to file an amended complaint with the warning that his failure to do so could 18
19 5 ECF No. 20 at 1. 20 6 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 7 Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply 21 with an order requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 22 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). 23 8 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423–24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260–61. 1 result in the complete dismissal of his case.9 Yet Bayless took no action for five months, 2 prolonging the resolution of this case. The third factor, risk of prejudice to the defendant, also 3 weighs in favor of dismissal because a presumption of injury arises from the occurrence of 4 unreasonable delay in filing a pleading ordered by the court or prosecuting an action.10 And 5 Bayless’s delay was inexcusable: aside from vague allegations of stress and medical issues that
6 he attributes to the defendant, Bayless doesn’t explain what actions he took during the relevant 7 time periods or why he failed to request additional time to amend his complaint or otherwise 8 communicate with the court.11 The fourth factor—the public policy favoring disposition of cases 9 on their merits—is greatly outweighed by the factors favoring dismissal. 10 The fifth factor requires the court to consider whether less drastic alternatives can be used 11 to correct the party’s failure that brought about the court’s need to consider dismissal.12 Courts 12 “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 13 explore possible and meaningful alternatives.”13 The only alternative here would be to enter a 14 second order setting another deadline and waiting to see whether Bayless will—or even can—
15 file a viable amended complaint. But there is nothing to indicate that further extending his 16
17 9 ECF No. 17 at 11. 10 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 18 11 See Pagtalunan v. Galaza, 291 F.3d 639, 642–43 (9th Cir. 2002) (affirming finding of 19 unreasonable delay because plaintiff failed to discuss what actions he took prior to a court order or why he failed to respond or communicate with the court about his delay). 20 12 Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before the party has disobeyed a court order does not satisfy this factor); 21 accord Pagtalunan, 291 F.3d at 643 & n.4 (9th Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of less drastic alternatives prior to 22 disobedience of the court’s order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled with the warning of dismissal for failure to comply[,]” have been 23 “eroded” by Yourish.) 13 Henderson, 779 F.2d at 1424. 1 deadline would move this case forward because Bayless has not explained how long he needs to 2 complete his amended complaint or what plans he has to do so, and he hasn’t communicated 3 with the court since his opposition brief more than five months ago. I thus find that setting 4 another deadline is not a meaningful alternative, so the fifth factor also favors dismissal. 5 II. Bayless’s belated request for an extension of time is denied because he has not 6 shown that his delay was due to excusable neglect.
7 Bayless states that the court has previously granted him an “extension of the November 4, 8 2022, deadline to March 15, 2023.”14 But the record is devoid of any motion Bayless made to 9 extend time, nor does it show any order granting him this relief. He next asks the court to 10 “consider Fe[d.] R. Civ. P. Rule 6(b)(1)(B) as a motion for excusable[neglect] relief,” citing the 11 Ninth Circuit case Pincay v. Andrews and the Supreme Court case Pioneer Investment Services 12 Co. v. Brunswick Associates.15 I liberally construe16 this argument as a motion to extend 13 Bayless’s deadline to amend his complaint. 14 Bayless argues that he missed the deadline because of “emotional, mental, and physical 15 stress caused by CCSD” allegedly subjecting him to six “[i]nvestigatory [c]onferences” that led 16 to his temporary suspension from work, “the need for surgery[,] and having to take prescribed 17 mood-altering medication.”17 Rule 6(b) allows courts to extend time for litigants demonstrating 18 good cause “on a motion made after the time has expired if the party failed to act because of 19 20 14 ECF No. 20 at 1. 21 15 Id. at 2 (citing Pincay v. Andrews, 389 F.3d 853, 854–855 (9th Cir. 2004); Pioneer Inv. Servs. 22 Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). 16 Courts must construe pro se motions and pleadings liberally. See Bernhardt v. Los Angeles 23 Cnty., 339 F.3d 920, 925 (9th Cir. 2003). 17 ECF No. 20 at 1–2. 1 excusable neglect.”18 The determination of whether neglect is considered excusable “‘is at 2 bottom an equitable one, taking account of all relevant circumstances surrounding the party’s 3 omission.’”19 Courts should consider “‘the danger of prejudice to the [plaintiff], the length of the 4 delay and its potential impact on judicial proceedings, the reason for the delay, including whether 5 it was within the reasonable control of the movant, and whether the movant acted in good
6 faith.’”20 7 I find that Bayless has not shown that his failure to amend his complaint by the deadline 8 or timely seek an extension of that deadline is a product of excusable neglect. Though Bayless is 9 acting pro se, the Ninth Circuit has held that “[p]ro se litigants must follow the same rules of 10 procedure that govern other litigants,”21 so they must become familiar with, and follow, the rules 11 of this court. Bayless had one month to file his amended complaint, failed to do so, and only 12 requested an extension in response to the defendant’s motion many months later.22 As the board 13 points out, its initial challenge to Bayless’s Title VII and ADEA claims was that they were 14 untimely, “so allowing [Bayless] to continue to be dilatory about filing deadlines” would
15 prejudice the defendant by hampering discovery in a lawsuit stemming from a hiring action 16 performed more than six years ago.23 Also unavailing are Bayless’s vague and conclusory 17 statements attributing his need for surgery and medication to the stress from investigatory 18
18 Fed. R. Civ. P. 6(b)(1)(B). 19 19 Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (quoting Pioneer Inv. 20 Servs. Co., 507 U.S. at 395). 20 Id. (quoting Pioneer, 507 U.S. at 395). 21 21 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986); Jacobsen v. Filler, 790 F.2d 1362, 1364–65 22 (9th Cir. 1986) (pro se litigants should not be treated more favorably than parties represented by attorneys). 23 22 See ECF No. 21 at 2. 23 Id. at 2–3. 1}| conferences conducted by “affiliate Keller Middle School administrative staff, under the auspices 2\|of CCSD.”™* These unsupported allegations do not show or explain how Bayless failed to act for 3|| five months due to excusable neglect. Plus, Bayless has still not filed an amended complaint in 4! the five months since his last action on the docket, so he is now nine months past the court’s 5|| deadline to do so. Even if Bayless had been granted the extension he requested, that deadline would have passed long ago by this point. 7 Conclusion 8 IT IS THEREFORE ORDERED that the defendant’s motion to enforce the order to 9|| dismiss [ECF No. 19] is GRANTED. This case is DISMISSED. Bayless’s request to extend 10]| time to amend his complaint is DENIED. The Clerk of Court is directed to ENTER 11], JUDGMENT accordingly and CLOSE THIS CASE.
13 US. District Judge Jennifer Dorsey August 21, 2023 14 15 16 17 18 19 20 21 22 23 4 ECF No. 20 at 1.