Victory v. Flangas Frizzell Law Firm

• Court: District Court, D. Nevada
• Decided: February 20, 2025
• Docket: 2:24-cv-02102
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 Justin Lynn Victory, Case No. 2:24-cv-02102-GMN-BNW

5 Plaintiff, REPORT AND RECOMMENDATION 6 v.

7 Flangas Frizzell Law Firm, et al.,

8 Defendants.

9 10 In mid-November, this Court dismissed Plaintiff’s complaint without prejudice and gave 11 him until December 20, 2024, to file an amended complaint. ECF No. 3. In that order, this Court 12 warned Plaintiff that failure to file an amended complaint may result in the recommendation that 13 this case be dismissed. Id. After that deadline came and went, this Court gave Plaintiff an 14 extension. ECF No. 5. It warned Plaintiff that if he did not file his amended complaint by January 15 29, 2025, his case may be dismissed. Plaintiff has neither filed an amended complaint by that 16 deadline nor moved for an extension of time to do so. As a result, this Court recommends that this 17 case be dismissed without prejudice and closed. 18 The law permits a district court to dismiss an action based on a party’s failure to prosecute 19 his case or comply with a court order. See Hells Canyon Preservation Council v. U.S. Forest 20 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant 21 to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply 22 with the rules of civil procedure or the court’s orders); see also Ferdik v. Bonzelet, 963 F.2d 1258, 23 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of 24 complaint). In determining whether to dismiss an action, the court must consider: (1) the public’s 25 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 26 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 27 merits; and (5) the availability of less drastic alternatives. In re Phenylpropanolamine Prod. Liab. 1 Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 2 130 (9th Cir. 1987)). 3 The first two factors, the public’s interest in expeditiously resolving this litigation and the 4 court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s claims. The 5 third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a 6 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading 7 ordered by the court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th 8 Cir. 1976). The fourth factor—the public policy favoring disposition of cases on their merits— 9 weighs against dismissal. 10 The fifth factor requires the court to consider whether less drastic alternatives can be used 11 to correct the party’s failure that brought about the court’s need to consider dismissal. Courts 12 “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 13 explore possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 14 Cir. 1986). Because this action cannot proceed without an operative complaint, the only 15 alternative is to enter a third order directing Plaintiff to file an amended complaint. The 16 circumstances here do not indicate that Plaintiff needs additional time nor is there evidence that 17 he did not receive the court’s prior orders. Setting another deadline is not a meaningful alternative 18 given these circumstances. So, the fifth factor favors dismissal. 19 In balance, the factors above favor a recommendation of dismissal. See Hernandez v. City 20 of El Monte, 138 F.3d 393 (9th Cir. 1998) (holdings dismissal is proper where least four factors 21 support dismissal or where at least three factors “strongly” support dismissal). 22 / / 23 / / 24 / / 25 / / 26 / / 27 / / 1 IT IS THEREFORE RECOMMENDED that THIS ACTION BE DISMISSED for 2 || failure to file an amended complaint by the court-ordered deadline. 3 4 NOTICE 5 This report and recommendation is submitted to the United States district judge assigned 6 || to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 7 || may file a written objection supported by points and authorities within fourteen days of being 8 || served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 9 || objection may waive the right to appeal the district court’s order. Martinez v. Yist, 951 F.2d 1153, 10 1157 (9th Cir. 1991). 11 12 DATED: February 20, 2025 13 Li Sa Les Ure Enon BRENDA WEKSLER □ 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28