Jones v. Salmonsen

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION BRENNAN ADRIAN JONES, Cause No. CV 23-49-M-DWM Petitioner, Vs. ORDER LAKE COUNTY, Respondent.

On June 20, 2023, the Court directed Petitioner to file an Amended Petition

on the Court’s form if he wished to proceed in this matter. (Doc. 6.) Jones failed to do so. His petition will be dismissed for failure to prosecute. Fed. R. Civ. P. 41(b) authorizes the Court to dismiss an action “[i]f the plaintiff fails to prosecute” the action or fails to comply with other Rules of the Court. See also Applied Underwriters v. Lichtenegger, 913 F. 3d 884, 889 (9" Cir. 2019) (citation omitted). A court may dismiss an action based on a party’s failure to prosecute an action, obey a court order, or comply with the local rules. See Ferdik v. Bonzelet, 963 F. 2d 1258, 1260-61 (9" Cir. 1992) (dismissal for failure to comply with a court order to amend a complaint). The Court may dismiss a case

on its own without awaiting a motion. See Link vy. Wabash Railroad Co., 370 U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United States Forest Serv., 403 F. 3d 683, 689 (9" Cir. 2005).

In determining whether a petitioner’s failure to prosecute warrants dismissal of the case, the Court must weigh the following five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9" Cir. 1988) (quoting Henderson

v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)). “The first two of these factors favor the imposition of sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir.1990). “The public’s interest in expeditious resolution of litigation always favors dismissal.” Yourish v. California Amplifier, 191 F. 3d 983, 990 (9" Cir. 1999). Jones has failed to comply with this Court’s order directing him to file an amended petition. This factor weighs in favor of dismissal. Likewise, the second factor supports dismissal. “The trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest.” Pagtalunan v. Galaza, 291 F. 3d 639 (9" Cir. 2002). The Court cannot manage its docket if Jones refuses to comply with the Court’s orders. Jones’s case has consumed judicial resources and time that could have been better spent on other matters. This factor, therefore, also

favors dismissal. The third factor requires the Court to weigh the risk of prejudice to the Respondents. A rebuttable presumption of prejudice to respondents arises when a petitioner unreasonably delays prosecution of an action. Jn re Eisen, 31 F.3d 1447, 1452-53 (9" Cir. 1994). Nothing suggests that such a presumption is unwarranted in this case, although it does not weigh strongly against Jones in the present case. The Court has considered less drastic alternatives. Alternatives may include “allowing further amended complaints, allowing additional time, or insisting that appellant associate experienced counsel.” Nevijel v. North Coast Life Insurance Co., 651 F. 2d 671, 674 (9" Cir. 1981). Although less drastic alternatives to dismissal should be considered, the Court is not required to exhaust all such alternatives prior to dismissal. /d. Jones was afforded an adequate amount of time in which to prepare and file his amended petition. At this juncture, the Court can envision no further alternatives to dismissal. The last factor weighs against dismissal because public policy favors disposition of cases on their merits. Hernandez v. City of El Monte, 138 F. 3d 393, 399 (9" Cir. 1998). But in light of the other four factors favoring dismissal, the weight of this factor is slight. No further resources of the Court will be expended. This matter will be dismissed based upon Jones’s failure to prosecute pursuant to Fed. F. Civ. P. 41(b). Accordingly, the Court enters the following:

ORDER 1. This matter is dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Any pending motions are DENIED as moot. 2. The Clerk of Court is directed to close this matter and enter judgment in favor of Respondent pursuant to Rule 58 of the Federal Rules of Civil Procedure. 3. The Clerk of Court is directed to have the docket reflect that the Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure that any appeal of this decision would not be taken in good faith. No reasonable

person could suppose an appeal would ee . DATED this se oP District Judge UnitedAtates District Court