Victory v. Bank of America

• Court: District Court, D. Nevada
• Decided: April 21, 2025
• Docket: 2:24-cv-00978
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Justin Lynn Victory, Case No. 2:24-cv-00978-JAD-DJA 6 Plaintiff, 7 Order v. and 8 Report and Recommendation C. LaRose, 9 Defendant. 10 11 On December 23, 2024, the Court entered an order screening Plaintiff Justin Lynn 12 Victory’s amended complaint and dismissing it without prejudice. (ECF No. 25). In that order, 13 the Court gave Plaintiff until January 22, 2025, to file an amended complaint if the noted 14 deficiencies could be corrected. The Court informed Plaintiff that “[f]ailure to comply with this 15 order will result in the recommended dismissal of this case.” (Id.) (emphasis in original). To 16 date, Plaintiff has not filed an amended complaint, or anything else, on the docket. So, the Court 17 recommends dismissal of this case without prejudice. A dismissal without prejudice allows 18 Plaintiff to refile a case with the Court, under a new case number. 19 Federal Rule of Civil Procedure 41(b) permits dismissal of an action for the failure to 20 prosecute or comply with rules or a court order. Fed. R. Civ. P. 41(b). In considering whether to 21 dismiss an action under Rule 41(b), courts consider: (1) the public’s interest in expeditious 22 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 23 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 24 availability of less drastic sanctions. Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1998). 25 Here, because Plaintiff has not complied with the Court’s order or taken any action in this 26 case since November of 2024, the Court recommends dismissal of Plaintiff’s case without 27 1 prejudice. See Fed. R. Civ. P. 41(b); see LR1 IA 11-8(e) (providing that the Court may, after 2 notice and an opportunity to be heard, impose any and all appropriate sanctions on a party who 3 fails to comply with any order); see Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 4 F.3d 1112, 1118 (9th Cir. 2000) (“an opportunity to be heard does not require an oral or 5 evidentiary hearing on the issue…[t]he opportunity to brief the issue fully satisfies due process 6 requirements”). The first factor weighs in favor of dismissal because the public has an interest in 7 expeditious resolution of litigation and Plaintiff’s failure to further participate in this lawsuit 8 impedes this goal. The second factor weighs in favor of dismissal because the Court’s need to 9 manage its docket is thwarted by Plaintiff’s failure to prosecute his own action and to comply 10 with this Court’s order. The third factor weighs in favor of dismissal because the longer this case 11 is carried on, the more difficult it will be for Defendants to defend against it because witnesses’ 12 memories will fade and evidence may be lost. The fourth factor weighs in favor of Plaintiff, but 13 does not outweigh the other factors. Fifth, lesser sanctions are not available if Plaintiff will not 14 comply with Court 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 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: April 21, 2025 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