Michael S. McDonald v. Americana Assisted Living

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Michael S. McDonald, Case No. 2:25-cv-01477-JAD-DJA 6 Plaintiff, 7 Order v. and 8 Report and Recommendation Americana Assisted Living, 9 Defendant. 10 11 On August 15, 2025, the Court denied Plaintiff’s application to proceed in forma pauperis 12 (meaning, to proceed without paying the filing fee) without prejudice because it was not on the 13 Court’s approved form. (ECF No. 3). In that order, the Court gave Plaintiff until October 14, 14 2025, to either file a complete application on the Court’s approved form or to pay the filing fee. 15 (Id.). In doing so, the Court informed Plaintiff that “[f]ailure to comply with this order will 16 result in the recommended dismissal of this case.” (Id.) (emphasis in original). To date, 17 Plaintiff has not filed an application to proceed without paying the filing fee, has not paid the 18 filing fee, and has not filed anything further on the docket. So, the Court recommends dismissal 19 of this case without prejudice. A dismissal without prejudice allows Plaintiff to refile a case with 20 the Court, under a new case number. 21 Federal Rule of Civil Procedure 41(b) permits dismissal of an action for the failure to 22 prosecute or comply with rules or a court order. Fed. R. Civ. P. 41(b). In considering whether to 23 dismiss an action under Rule 41(b), courts consider: (1) the public’s interest in expeditious 24 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 25 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 26 availability of less drastic sanctions. Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1998). 27 Here, because Plaintiff has not complied with the Court’s order or taken any action in this 1 See Fed. R. Civ. P. 41(b); see LR1 IA 11-8(e) (providing that the Court may, after notice and an 2 opportunity to be heard, impose any and all appropriate sanctions on a party who fails to comply 3 with any order); see Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 4 (9th Cir. 2000) (“an opportunity to be heard does not require an oral or evidentiary hearing on the 5 issue…[t]he opportunity to brief the issue fully satisfies due process requirements”). The first 6 factor weighs in favor of dismissal because the public has an interest in expeditious resolution of 7 litigation and Plaintiff’s failure to further participate in this lawsuit impedes this goal. The 8 second factor weighs in favor of dismissal because the Court’s need to manage its docket is 9 thwarted by Plaintiff’s failure to prosecute his own action and to comply with this Court’s order. 10 The third factor weighs in favor of dismissal because the longer this case is carried on, the more 11 difficult it will be for Defendant to defend against it because witnesses’ memories will fade and 12 evidence may be lost. The fourth factor weighs in favor of Plaintiff, but does not outweigh the 13 other factors. Fifth, lesser sanctions are not available if Plaintiff will not comply with Court 14 orders. So, the Court recommends dismissing this case without prejudice. 15 16 ORDER 17 IT IS ORDERED that the Clerk of Court is kindly directed to send Plaintiff a copy of 18 this order and report and recommendation. 19 RECOMMENDATION 20 IT IS RECOMMENDED that this case be dismissed without prejudice. 21 22 NOTICE 23 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be 24 in writing and filed with the Clerk of the Court within fourteen (14) days after service of this 25 Notice. The Supreme Court has held that the courts of appeal may determine that an appeal has 26 27 1 This refers to the Local Rules of Practice for the United States District Court, District of Nevada, which can be found on the Court’s website at https://www.nvd.uscourts.gov/court- 1 been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 2 U.S. 140, 142 (1985) reh’g denied, 474 U.S. 1111 (1986). The Ninth Circuit has also held that 3 (1) failure to file objections within the specified time and (2) failure to properly address and brief 4 the objectionable issues could waive the right to appeal the District Court’s order and/or appeal 5 factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 6 1991); see Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983); see Miranda 7 v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012). 8 9 DATED: May 5, 2026, 10 DANIEL J. ALBREGTS 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27