1 2 3 WESTERN DISTRICT OF WASHINGTON 6 SCOTT T LAY, Case No. 3:25-cv-05122-BHS 7 Plaintiff, v. REPORT AND ESTATE OF MICHAEL DAVID OLSEN et 9 al, Noted for: May 27, 2025 10 Defendants. 11 12 The District Court has referred this action to United States Magistrate Judge 13 Theresa L. Fricke. On February 13, 2025, plaintiff filed a motion to proceed in forma 14 pauperis (IFP) regarding his proposed complaint. Dkt. 1. After screening the proposed 15 complaint, the Court ordered plaintiff to show cause why his complaint should not be 16 dismissed for failure to state a claim. Dkt. 3. The Court ordered plaintiff to either show 17 cause by April 15, 2025 why the complaint should not be dismissed without prejudice or 18 file an amended complaint. Id. 19 Plaintiff has not responded to the Court’s Order. Accordingly, the undersigned 20 recommends the Court dismiss this matter without prejudice for failure to prosecute. 22 I. Failure to Prosecute 23 Federal Rule of Civil Procedure 41(b) provides that “[f]or failure of the plaintiff to 24 prosecute or to comply with these rules or any order of court, a defendant may move for 1 dismissal of an action.” In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), 2 the Supreme Court recognized that a federal district court has the inherent power to 3 dismiss a case sua sponte for failure to prosecute, even though the language of Rule 4 41(b) of the Federal Rules of Civil Procedure appears to require a motion from a party.
5 Moreover, in appropriate circumstances, the Court may dismiss a complaint for failure to 6 prosecute even without notice or hearing. See id. at 633. 7 In determining whether plaintiff's failure to prosecute warrants dismissal of the 8 case, the Court must weigh the following five factors: “(1) the public's interest in 9 expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk 10 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 11 merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 12 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 13 1986)). “The first two of these factors favor the imposition of sanctions in most cases, 14 while the fourth factor cuts against a default or dismissal sanction. Thus, the key factors
15 are prejudice and availability of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 16 656 (9th Cir. 1990). 17 Here, the first and second factors favor dismissal of the case. The third factor 18 weighs against dismissal because the defendants have not been served in this case. 19 The fourth factor, as always, weighs against dismissal. The fifth factor requires the 20 Court to consider whether a less drastic alternative is available. The Court has already 21 ordered plaintiff to show cause why this matter should not be dismissed and has given 22 plaintiff an opportunity to amend the complaint. Plaintiff has not responded to the 23
24 1 Court’s Order. The Court finds that only one less drastic sanction is realistically 2 available. 3 Rule 41(b) provides that a dismissal for failure to prosecute operates as an 4 adjudication upon the merits “[u]nless the court in its order for dismissal otherwise
5 specifies.” In the instant case, the Court finds that a dismissal with prejudice would be 6 unnecessarily harsh. The complaint and this action should therefore be dismissed 7 without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 8 II. Failure to State a Claim 9 Additionally, plaintiff’s proposed amended complaint (Dkt. 1-1), and this action, 10 should be dismissed without prejudice for failure to state a claim. The Court must 11 dismiss the complaint of a prisoner proceeding in forma pauperis “at any time if the 12 [C]ourt determines” that the action: (a) “is frivolous or malicious”; (b) “fails to state a 13 claim on which relief may be granted”’ or (c) “seeks monetary relief against a defendant 14 who is immune from such relief.” 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a), (b). A
15 complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 16 745 F.2d 1221, 1228 (9th Cir. 1984), abrogated on other grounds by Neitzke v. 17 Williams, 490 U.S. 319 (1989). Before the Court may dismiss the complaint as frivolous 18 or for failure to state a claim, though, it “must provide the [prisoner] with notice of the 19 deficiencies of [the] complaint and an opportunity to amend the complaint prior to 20 dismissal.” McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other 21 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); see also Sparling 22 v. Hoffman Construction, Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988); Noll v. Carlson, 23 809 F.2d 1446, 1449 (9th Cir. 1987).
24 1 On the other hand, leave to amend need not be granted “where the amendment 2 would be futile or where the amended complaint would be subject to dismissal.” Saul v. 3 United States, 928 F.2d 829, 843 (9th Cir. 1991) (citing Reddy v. Litton Indus., Inc., 912 4 F.2d 291, 296 (9th Cir.1990); Moore v. Kayport Package Express, Inc., 885 F.2d 531,
5 538 (9th Cir.1989)). The Court liberally construes pro se documents. Estelle v. Gamble, 6 429 U.S. 97, 106 (1976). Yet, Rule 8(a) of the Federal Rules of Civil Procedure provides 7 that, for a pleading to state a claim for relief it must contain a short and plain statement 8 of the grounds for the court’s jurisdiction, a short and plain statement of the claim 9 showing that the pleader is entitled to relief, and a demand for the relief sought. The 10 statement of the claim must be sufficient to “give the defendant fair notice of what the 11 plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 12 47 (1957). 13 To avoid dismissal, a complaint must contain sufficient factual matter, accepted 14 as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S.
15 662, 664 (2009). The factual allegations must be “enough to raise a right to relief above 16 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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1 2 3 WESTERN DISTRICT OF WASHINGTON 6 SCOTT T LAY, Case No. 3:25-cv-05122-BHS 7 Plaintiff, v. REPORT AND ESTATE OF MICHAEL DAVID OLSEN et 9 al, Noted for: May 27, 2025 10 Defendants. 11 12 The District Court has referred this action to United States Magistrate Judge 13 Theresa L. Fricke. On February 13, 2025, plaintiff filed a motion to proceed in forma 14 pauperis (IFP) regarding his proposed complaint. Dkt. 1. After screening the proposed 15 complaint, the Court ordered plaintiff to show cause why his complaint should not be 16 dismissed for failure to state a claim. Dkt. 3. The Court ordered plaintiff to either show 17 cause by April 15, 2025 why the complaint should not be dismissed without prejudice or 18 file an amended complaint. Id. 19 Plaintiff has not responded to the Court’s Order. Accordingly, the undersigned 20 recommends the Court dismiss this matter without prejudice for failure to prosecute. 22 I. Failure to Prosecute 23 Federal Rule of Civil Procedure 41(b) provides that “[f]or failure of the plaintiff to 24 prosecute or to comply with these rules or any order of court, a defendant may move for 1 dismissal of an action.” In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), 2 the Supreme Court recognized that a federal district court has the inherent power to 3 dismiss a case sua sponte for failure to prosecute, even though the language of Rule 4 41(b) of the Federal Rules of Civil Procedure appears to require a motion from a party.
5 Moreover, in appropriate circumstances, the Court may dismiss a complaint for failure to 6 prosecute even without notice or hearing. See id. at 633. 7 In determining whether plaintiff's failure to prosecute warrants dismissal of the 8 case, the Court must weigh the following five factors: “(1) the public's interest in 9 expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk 10 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 11 merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 12 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 13 1986)). “The first two of these factors favor the imposition of sanctions in most cases, 14 while the fourth factor cuts against a default or dismissal sanction. Thus, the key factors
15 are prejudice and availability of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 16 656 (9th Cir. 1990). 17 Here, the first and second factors favor dismissal of the case. The third factor 18 weighs against dismissal because the defendants have not been served in this case. 19 The fourth factor, as always, weighs against dismissal. The fifth factor requires the 20 Court to consider whether a less drastic alternative is available. The Court has already 21 ordered plaintiff to show cause why this matter should not be dismissed and has given 22 plaintiff an opportunity to amend the complaint. Plaintiff has not responded to the 23
24 1 Court’s Order. The Court finds that only one less drastic sanction is realistically 2 available. 3 Rule 41(b) provides that a dismissal for failure to prosecute operates as an 4 adjudication upon the merits “[u]nless the court in its order for dismissal otherwise
5 specifies.” In the instant case, the Court finds that a dismissal with prejudice would be 6 unnecessarily harsh. The complaint and this action should therefore be dismissed 7 without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 8 II. Failure to State a Claim 9 Additionally, plaintiff’s proposed amended complaint (Dkt. 1-1), and this action, 10 should be dismissed without prejudice for failure to state a claim. The Court must 11 dismiss the complaint of a prisoner proceeding in forma pauperis “at any time if the 12 [C]ourt determines” that the action: (a) “is frivolous or malicious”; (b) “fails to state a 13 claim on which relief may be granted”’ or (c) “seeks monetary relief against a defendant 14 who is immune from such relief.” 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a), (b). A
15 complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 16 745 F.2d 1221, 1228 (9th Cir. 1984), abrogated on other grounds by Neitzke v. 17 Williams, 490 U.S. 319 (1989). Before the Court may dismiss the complaint as frivolous 18 or for failure to state a claim, though, it “must provide the [prisoner] with notice of the 19 deficiencies of [the] complaint and an opportunity to amend the complaint prior to 20 dismissal.” McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other 21 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); see also Sparling 22 v. Hoffman Construction, Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988); Noll v. Carlson, 23 809 F.2d 1446, 1449 (9th Cir. 1987).
24 1 On the other hand, leave to amend need not be granted “where the amendment 2 would be futile or where the amended complaint would be subject to dismissal.” Saul v. 3 United States, 928 F.2d 829, 843 (9th Cir. 1991) (citing Reddy v. Litton Indus., Inc., 912 4 F.2d 291, 296 (9th Cir.1990); Moore v. Kayport Package Express, Inc., 885 F.2d 531,
5 538 (9th Cir.1989)). The Court liberally construes pro se documents. Estelle v. Gamble, 6 429 U.S. 97, 106 (1976). Yet, Rule 8(a) of the Federal Rules of Civil Procedure provides 7 that, for a pleading to state a claim for relief it must contain a short and plain statement 8 of the grounds for the court’s jurisdiction, a short and plain statement of the claim 9 showing that the pleader is entitled to relief, and a demand for the relief sought. The 10 statement of the claim must be sufficient to “give the defendant fair notice of what the 11 plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 12 47 (1957). 13 To avoid dismissal, a complaint must contain sufficient factual matter, accepted 14 as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S.
15 662, 664 (2009). The factual allegations must be “enough to raise a right to relief above 16 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The 17 complaint may be dismissed if it lacks a cognizable legal theory or states insufficient 18 facts to support a cognizable legal theory. Zixiang v. Kerry, 710 F.3d 995, 999 (9th Cir. 19 2013). A complaint is frivolous if it “lacks an arguable basis in law or in fact.” Neitzke v. 20 Williams, 490 U.S. 319, 325 (1989); Wainscott v. San Diego Cty., 9 F.3d 1555 (9th Cir. 21 1993). 22 Here plaintiff fails to state a claim upon which relief can be granted. Plaintiff 23 names twelve defendants and asserts claims based on allegations that an unlicensed
24 1 mortgage broker committed various acts and that fiduciary duties were breached, owed 2 by individuals who had a knowledge of the broker’s actions. Dkt. 1-1. 3 Plaintiff alleges that the partnership of Olson, Blair, Macleod, Gruenkemier, and 4 others, violated multiple Washington State laws and federal laws related to the sale of
5 property in Gig Harbor, but he does not explain what actions the individuals took or how 6 the acts constituted a violation of these laws. See Dkt. 1-1 at 4-5. Plaintiff also alleges 7 these violations were caused using a commercial deed of trust in a primary residence or 8 finance without a licensed mortgage broker who is placing the loan against the 9 company, but again, plaintiff does not explain which defendants committed an act or 10 omission, or how any act or failure to act, by any individual, led to the violations alleged. 11 See id. at 5-7. Plaintiff has not alleged sufficient factual assertions to support a facially 12 plausible claim for relief. See Iqbal, 556 U.S. at 678. 13 Plaintiff attaches an “Amended Complaint” to alert the Court that he filed a 14 lawsuit in Pierce County Superior Court. See Dkt. 1-2. But plaintiff does not include
15 facts in the body of the complaint. 16 In sum, plaintiff has failed to assert facts to support allegations of what 17 happened, when it happened, who was involved, and how the persons who allegedly 18 are responsible caused any violation of his rights. As such, because plaintiff has failed 19 to state a claim, his IFP motion should be denied, and his complaint should be 20 dismissed. 22 Plaintiff’s IFP motion should be DENIED, and his proposed amended complaint 23 (Dkt. 1-1) should be DISMISSED without prejudice.
24 1 Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall 2 have fourteen (14) days from service of this report to file written objections. See also 3 Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for 4 purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can
5 result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 6 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations 7 omitted). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the Clerk is 8 directed to set the matter for consideration on May 27, 2025, as noted in the caption. 9 10 Dated this 12th day of May, 2025 11 A
12 Theresa L. Fricke United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24