Carrillo v. Mayorkas

• Court: District Court, D. Arizona
• Decided: July 11, 2025
• Docket: 2:24-cv-01577
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Benjamin Carrillo, No. CV-24-01577-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Alejandro N Mayorkas, et al., 13 Defendants. 14 15 This matter is before the Court on its own review. 16 I. 17 On June 28, 2024, Plaintiff Benjamin Carrillo commenced this action, alleging 18 violations of Title VII of the Civil Rights Act of 1964 against Defendants. (Doc. 1.) 19 Approximately one year later—and with little to no activity on the docket since—the Court 20 ordered Plaintiff to show cause in writing as to why this case should not be dismissed for 21 failure to serve process under Rule 4(m) and failure to prosecute under Rule 41(b). 22 (Doc. 8.) To date, Plaintiff has neither served Defendants nor responded to the order to 23 show cause. 24 II. 25 Under Rule 4, “[i]f a defendant is not served within 90 days after the complaint is 26 filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the 27 action without prejudice against that defendant or order that service be made within a 28 specified time.” Fed. R. Civ. P. 4(m). “The plaintiff has the burden of persuading the court 1 of the reasonableness of his delay and the lack of prejudice to the defendant.” Franklin v. 2 Murphy, 745 F.2d 1221, 1232 (9th Cir. 1984), abrogated on other grounds by Neitzke v. 3 Williams, 490 U.S. 319 (1989). 4 Further, Rule 41(b) of the Federal Rules of Civil Procedure requires a plaintiff to 5 prosecute his case with reasonable diligence. Moore v. Telfon Commc’ns Corp., 589 F.2d 6 959, 967 (9th Cir. 1978). And in the event the plaintiff fails to prosecute or comply with 7 the court’s orders and rules, his case may be dismissed involuntarily. See Fed. R. Civ. P. 8 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (explaining that district courts 9 have “inherent power” to dismiss a case sua sponte for lack of prosecution). The Court 10 must weigh the following factors before dismissal: “(1) the public’s interest in expeditious 11 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice 12 to the defendants; (4) the public policy favoring disposition of cases o[n] their merits; and 13 (5) the availability of less drastic sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 14 (9th Cir. 1986) (citation omitted). 15 III. 16 The first, second, and third factors counsel in favor of dismissing this case. This 17 action has been pending for over one year and Plaintiff has failed to serve Defendants, 18 respond to this Court’s order to show cause, or otherwise participate in this action. See 19 Colirio v. Arpaio, No. CV 06-0442-PHX-JAT, 2007 WL 328019, at *2 (D. Ariz. Feb. 2, 20 2007) (finding the first three Henderson factors support dismissal where “Plaintiff’s failure 21 to serve Defendants, or to actively participate in this case prevents the case from proceeding 22 in the foreseeable future.”). 23 The fourth factor generally weighs against dismissal given the strong policy 24 preference for resolving cases on their merits. A dismissal without prejudice, however, 25 would not offend public policy because Plaintiff could adjudicate the merits of his claims 26 on a later date, if desired. See Garcia v. Glendale Police Dep’t, No. CV 11-02260-PHX- 27 JAT, 2014 WL 922909, at *2 (D. Ariz. Mar. 10, 2014) (recognizing that a dismissal without 28 prejudice means the fourth Henderson factor “neither favors nor disfavors dismissal”). 1 And finally, the “availability of other alternatives” factor supports dismissal where 2|| the Court enters a dismissal without prejudice, as opposed to a dismissal with prejudice. Colirio, 2007 WL 328019, at *2. A dismissal without prejudice means a complaint 4|| asserting the same claims can be refiled. See Semtek Int’l Inc. v. Lockheed Martin Corp., 5|| 531 U.S. 497, 505-06 (2001). Because this is a less drastic sanction than a dismissal with 6 || prejudice, the fifth Henderson factor supports dismissal. 7 On balance, the five factors tilt heavily in favor of dismissing this action. 8 IV. 9 Accordingly, 10 IT IS ORDERED that Plaintiff's Complaint (Doc. 1) is dismissed without 11 |} prejudice pursuant to Rule 4(m) and Rule 41(b) of the Federal Rules of Civil Procedure. 12 IT IS FURTHER ORDERED directing the Clerk of Court to enter a judgment of 13 || dismissal without prejudice and close this case. 14 Dated this 11th day of July, 2025. 15 WMichad T. dibund Michael T. Liburdi 18 United States District Judge 19 20 21 22 23 24 25 26 27 28

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