1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Connor Higgins, et al., No. CV-22-00522-PHX-DWL
10 Plaintiffs, ORDER
11 v.
12 Grace L Haubert, et al.,
13 Defendants. 14 15 This action arises from an April 2020 incident in which Connor Higgins and David 16 Jones (together, “Plaintiffs”), who were riding in a car that Higgins had rented from 17 Defendant Hertz Corporation (“Hertz”), were struck by a car driven by Defendant Grace 18 Haubert (“Haubert”). (See generally Doc. 1.) In the complaint, both Plaintiffs assert a 19 negligence claim against Haubert and Jones also asserts a negligence claim against Hertz. 20 (Id. ¶¶ 19-28.) The complaint alleges that this Court possesses subject-matter jurisdiction 21 “pursuant to 28 U.S.C. § 1332(a) because the amount in controversy of this suit exceeds 22 $75,000.00, exclusive of interest and costs, and is between citizens of different states.” (Id. 23 ¶ 8.) 24 On May 1, 2023, Hertz filed a motion for summary judgment. (Doc. 26.) The 25 motion argues as follows: “First, Hertz is entitled to judgment as a matter of law because 26 49 U.S.C. § 30106 limits the liability of owners of motor vehicles engaged in the business 27 of renting out motor vehicles for harm to persons or property arising out of the use of the 28 vehicle, so long as there is no negligence or criminal wrongdoing on the part of the owner. 1 Second, Hertz’s obligation to indemnify its renter is derived from the fiduciary relationship 2 between an insurer and insured/renter and no judgment exists to create such an obligation 3 towards Plaintiff David Jones. Nor can it as Hertz’s renter is not a defendant in this action. 4 Because Plaintiff’s claims are both precluded by statute and insufficient, this case is 5 appropriate for summary judgment resolution.” (Id. at 1.) 6 Jones’s response to Hertz’s summary judgment motion was due by May 31, 2023. 7 See LRCiv 56.1(d). However, Jones has never responded. 8 The docket reflects that, between August 2022 and June 2023, Defendants 9 repeatedly attempted to notice the depositions of Plaintiffs. (Docs. 24-25, 28-32.) 10 However, Plaintiffs repeatedly failed to appear. (Docs. 33-1, 33-2.) 11 On July 6, 2023, Haubert filed a motion to dismiss. (Doc. 33.) The motion seeks 12 dismissal on two grounds: first, under Rule 37(d)(1), due to Plaintiffs’ failure to appear for 13 their depositions; and second, under Rule 12(b)(1), “since neither of the Plaintiffs’ claims 14 meet the amount in controversy requirement.” (Id. at 1-2.) As for the latter theory, Haubert 15 elaborates that, during the discovery process, Plaintiffs produced an initial disclosure 16 statement that estimated Higgins’s damages as no more than $60,000 and Jones’s damages 17 as approximately $30,000. (Id. at 4.) Haubert contends that these allegations are facially 18 insufficient to establish diversity jurisdiction because “[w]hen there are multiple plaintiffs, 19 each must allege a claim that is in excess of $75,000.” (Id.) 20 On July 14, 2023, Hertz filed a joinder in Haubert’s motion to dismiss. (Doc. 34.) 21 Plaintiffs’ response to Haubert’s motion to dismiss was due by August 7, 2023. See 22 LRCiv 12.1(b). The deadline has now expired and Plaintiffs have not responded. 23 Plaintiffs’ failure to respond to the pending motion to dismiss means that, under this 24 Court’s local rules, the motion may be granted summarily. See LRCiv 7.2(i) (“[I]f [an] 25 unrepresented party or counsel does not serve and file the required answering memoranda, 26 . . . such non-compliance may be deemed a consent to the . . . granting of the motion and 27 the Court may dispose of the motion summarily.”). However, “[b]efore dismissing the 28 action” based on a “[f]ailure to follow a district court’s local rules, the district court is 1 required to weigh several factors: (1) the public’s interest in expeditious resolution of 2 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 3 defendants; (4) the public policy favoring disposition of cases of their merits; and (5) the 4 availability of less drastic sanctions.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) 5 (citations and internal quotation marks omitted). 6 Separately, the Court “has the inherent power to dismiss a case sua sponte for failure 7 to prosecute.” Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962). The same five 8 factors that are outlined above guide the analysis when considering dismissal on this basis. 9 Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). “The sub-parts of the fifth factor are 10 whether the court has considered lesser sanctions, whether it tried them, and whether it 11 warned the recalcitrant party about the possibility of case-dispositive sanctions.” 12 Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th 13 Cir. 2007). Dismissal is proper where “at least four factors support dismissal, or where at 14 least three factors strongly support dismissal.” Yourish v. California Amplifier, 191 F.3d 15 983, 990 (9th Cir. 1999) (internal quotation marks omitted). Nevertheless, “[t]his ‘test’ is 16 not mechanical. It provides the district court with a way to think about what to do, not a set 17 of conditions precedent . . . or a script that the district court must follow.” Conn. Gen. 18 Life, 482 F.3d at 1096. 19 Regarding the first factor, “the public’s interest in expeditious resolution of 20 litigation always favors dismissal” and can “strongly” support dismissal. Yourish, 191 21 F.3d at 990. 22 Regarding the second factor, Plaintiffs’ apparent disinterest in continuing to litigate 23 this action—they have not bothered to respond to dispositive motions or show up for 24 properly noticed depositions—has frustrated the Court’s ability to manage its docket. 25 Regarding the third factor, Plaintiffs’ failure to appear for their depositions creates 26 a significant risk of prejudice to Defendants. Parker v. Shaw & Lines, LLC, 2010 WL 27 1640963, *2 (D. Ariz. 2010) (“It is axiomatic that, as time passes, it becomes harder for 28 Defendants to defend the action as witnesses become unavailable and memories fade.”). 1 The third factor supports dismissal. 2 The fourth factor weighs against dismissal. “Because public policy favors 3 disposition of cases on their merits, this factor weighs against dismissal.” Wystrach v. 4 Ciachurski, 267 F. App’x 606, 608 (9th Cir. 2008). 5 The fifth factor supports dismissal. This factor requires the Court to consider 6 whether less drastic sanctions could be appropriate, whether it has already tried them, and 7 whether the noncompliant party has been warned that the case could be dismissed for 8 failure to comply. Connecticut Gen. Life, 482 F.3d at 1096. Here, a local rule expressly 9 permits the Court to “dispose of the motion summarily” when an “unrepresented party” 10 fails to “file the required answering memoranda” for a motion. LRCiv 7.2(i).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Connor Higgins, et al., No. CV-22-00522-PHX-DWL
10 Plaintiffs, ORDER
11 v.
12 Grace L Haubert, et al.,
13 Defendants. 14 15 This action arises from an April 2020 incident in which Connor Higgins and David 16 Jones (together, “Plaintiffs”), who were riding in a car that Higgins had rented from 17 Defendant Hertz Corporation (“Hertz”), were struck by a car driven by Defendant Grace 18 Haubert (“Haubert”). (See generally Doc. 1.) In the complaint, both Plaintiffs assert a 19 negligence claim against Haubert and Jones also asserts a negligence claim against Hertz. 20 (Id. ¶¶ 19-28.) The complaint alleges that this Court possesses subject-matter jurisdiction 21 “pursuant to 28 U.S.C. § 1332(a) because the amount in controversy of this suit exceeds 22 $75,000.00, exclusive of interest and costs, and is between citizens of different states.” (Id. 23 ¶ 8.) 24 On May 1, 2023, Hertz filed a motion for summary judgment. (Doc. 26.) The 25 motion argues as follows: “First, Hertz is entitled to judgment as a matter of law because 26 49 U.S.C. § 30106 limits the liability of owners of motor vehicles engaged in the business 27 of renting out motor vehicles for harm to persons or property arising out of the use of the 28 vehicle, so long as there is no negligence or criminal wrongdoing on the part of the owner. 1 Second, Hertz’s obligation to indemnify its renter is derived from the fiduciary relationship 2 between an insurer and insured/renter and no judgment exists to create such an obligation 3 towards Plaintiff David Jones. Nor can it as Hertz’s renter is not a defendant in this action. 4 Because Plaintiff’s claims are both precluded by statute and insufficient, this case is 5 appropriate for summary judgment resolution.” (Id. at 1.) 6 Jones’s response to Hertz’s summary judgment motion was due by May 31, 2023. 7 See LRCiv 56.1(d). However, Jones has never responded. 8 The docket reflects that, between August 2022 and June 2023, Defendants 9 repeatedly attempted to notice the depositions of Plaintiffs. (Docs. 24-25, 28-32.) 10 However, Plaintiffs repeatedly failed to appear. (Docs. 33-1, 33-2.) 11 On July 6, 2023, Haubert filed a motion to dismiss. (Doc. 33.) The motion seeks 12 dismissal on two grounds: first, under Rule 37(d)(1), due to Plaintiffs’ failure to appear for 13 their depositions; and second, under Rule 12(b)(1), “since neither of the Plaintiffs’ claims 14 meet the amount in controversy requirement.” (Id. at 1-2.) As for the latter theory, Haubert 15 elaborates that, during the discovery process, Plaintiffs produced an initial disclosure 16 statement that estimated Higgins’s damages as no more than $60,000 and Jones’s damages 17 as approximately $30,000. (Id. at 4.) Haubert contends that these allegations are facially 18 insufficient to establish diversity jurisdiction because “[w]hen there are multiple plaintiffs, 19 each must allege a claim that is in excess of $75,000.” (Id.) 20 On July 14, 2023, Hertz filed a joinder in Haubert’s motion to dismiss. (Doc. 34.) 21 Plaintiffs’ response to Haubert’s motion to dismiss was due by August 7, 2023. See 22 LRCiv 12.1(b). The deadline has now expired and Plaintiffs have not responded. 23 Plaintiffs’ failure to respond to the pending motion to dismiss means that, under this 24 Court’s local rules, the motion may be granted summarily. See LRCiv 7.2(i) (“[I]f [an] 25 unrepresented party or counsel does not serve and file the required answering memoranda, 26 . . . such non-compliance may be deemed a consent to the . . . granting of the motion and 27 the Court may dispose of the motion summarily.”). However, “[b]efore dismissing the 28 action” based on a “[f]ailure to follow a district court’s local rules, the district court is 1 required to weigh several factors: (1) the public’s interest in expeditious resolution of 2 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 3 defendants; (4) the public policy favoring disposition of cases of their merits; and (5) the 4 availability of less drastic sanctions.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) 5 (citations and internal quotation marks omitted). 6 Separately, the Court “has the inherent power to dismiss a case sua sponte for failure 7 to prosecute.” Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962). The same five 8 factors that are outlined above guide the analysis when considering dismissal on this basis. 9 Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). “The sub-parts of the fifth factor are 10 whether the court has considered lesser sanctions, whether it tried them, and whether it 11 warned the recalcitrant party about the possibility of case-dispositive sanctions.” 12 Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th 13 Cir. 2007). Dismissal is proper where “at least four factors support dismissal, or where at 14 least three factors strongly support dismissal.” Yourish v. California Amplifier, 191 F.3d 15 983, 990 (9th Cir. 1999) (internal quotation marks omitted). Nevertheless, “[t]his ‘test’ is 16 not mechanical. It provides the district court with a way to think about what to do, not a set 17 of conditions precedent . . . or a script that the district court must follow.” Conn. Gen. 18 Life, 482 F.3d at 1096. 19 Regarding the first factor, “the public’s interest in expeditious resolution of 20 litigation always favors dismissal” and can “strongly” support dismissal. Yourish, 191 21 F.3d at 990. 22 Regarding the second factor, Plaintiffs’ apparent disinterest in continuing to litigate 23 this action—they have not bothered to respond to dispositive motions or show up for 24 properly noticed depositions—has frustrated the Court’s ability to manage its docket. 25 Regarding the third factor, Plaintiffs’ failure to appear for their depositions creates 26 a significant risk of prejudice to Defendants. Parker v. Shaw & Lines, LLC, 2010 WL 27 1640963, *2 (D. Ariz. 2010) (“It is axiomatic that, as time passes, it becomes harder for 28 Defendants to defend the action as witnesses become unavailable and memories fade.”). 1 The third factor supports dismissal. 2 The fourth factor weighs against dismissal. “Because public policy favors 3 disposition of cases on their merits, this factor weighs against dismissal.” Wystrach v. 4 Ciachurski, 267 F. App’x 606, 608 (9th Cir. 2008). 5 The fifth factor supports dismissal. This factor requires the Court to consider 6 whether less drastic sanctions could be appropriate, whether it has already tried them, and 7 whether the noncompliant party has been warned that the case could be dismissed for 8 failure to comply. Connecticut Gen. Life, 482 F.3d at 1096. Here, a local rule expressly 9 permits the Court to “dispose of the motion summarily” when an “unrepresented party” 10 fails to “file the required answering memoranda” for a motion. LRCiv 7.2(i). Moreover, 11 Plaintiffs were “specifically advised” at the outset of the case “that failure to prosecute, to 12 comply with court orders, or to comply with the Local and Federal Rules may result in 13 dismissal of all or part of this case, default, imposition of sanctions, or summary disposition 14 of matters pending before the Court.” (Doc. 8 at 6.) It is within the Court’s discretion to 15 dismiss the action summarily at this juncture. United States v. Warren, 601 F.2d 471, 474 16 (9th Cir. 1979) (“Only in rare cases will we question the exercise of discretion in 17 connection with the application of local rules.”). 18 The Court has considered whether less drastic sanctions could be appropriate in this 19 case. Available alternatives include, for example, “a formal reprimand, imposition of costs 20 or attorney fees, or an adjudication of the motion without the benefit of plaintiffs’ 21 arguments in opposition.” Wystrach, 267 F. App’x at 608. The Court has considered these 22 other options and concludes that they would not be appropriate sanctions here in light of 23 Plaintiffs’ lengthy track record of non-participation and non-compliance. The Court will 24 dismiss the action without prejudice, which is the only less drastic sanction appropriate 25 here. See, e.g., Fader v. City of Phoenix, 2013 WL 5446676, *2–3 (D. Ariz. 2013) 26 (“[D]ismissal without prejudice is the only acceptable less drastic sanction in this case.”). 27 … 28 … 1 Accordingly, 2 IT IS ORDERED that: 3 1. Haubert’s motion to dismiss (Doc. 33), in which Hertz joins (Doc. 34), is summarily granted. 5 2. Additionally or alternatively, this action is dismissed for failure to prosecute. 6 3. Hertz’s motion for summary judgment (Doc. 26) is denied as moot. 7 4, The Clerk shall enter judgment accordingly and terminate this action. 8 Dated this 8th day of August, 2023. 9 10 iam =? ul f Dominic W. Lanza 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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