Vidal v. Lindsey

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 Case No.: 2:19-cv-1334-JAD-BNW 4 Francisco Vidal,

5 Plaintiff Order Adopting Report & Recommendation 6 and Dismissing Action v. 7 J Lindsey, et al., 8 [ECF No. 49]

9 Defendants 10 11 When Plaintiff Francisco Vidal’s mail from this court started getting returned to sender, 12 the court ordered him to file a notice of change of address by January 10, 2022, or risk having his 13 case dismissed.1 Plaintiff did not update his address, so the magistrate judge issued a report and 14 recommendation to dismiss this case without prejudice.2 The deadline for the plaintiff to object 15 to that recommendation was January 25, 2022, and the plaintiff neither filed objections nor 16 moved to extend the deadline to do so. “[N]o review is required of a magistrate judge’s report 17 and recommendation unless objections are filed.”3 Having reviewed the R&R, I find good cause 18 to adopt it, and I do. 19 District courts have the inherent power to control their dockets and “[i]n the exercise of 20 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.4 A 21 court may dismiss an action based on a party’s failure to obey a court order or comply with local 22 23

24 1 ECF Nos. 46, 47. 25 26 2 ECF No. 49. 27 3 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 28 4 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 1 rules.5 In determining whether to dismiss an action on this ground, the court must consider: (1) 2 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 3 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 4 cases on their merits; and (5) the availability of less drastic alternatives.6 5 The first two factors, the public’s interest in expeditiously resolving this litigation and the 6 court’s interest in managing its docket, weigh in favor of dismissal of the plaintiff’s claims. The 7 third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a 8 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading 9 ordered by the court or prosecuting an action.7 The fourth factor—the public policy favoring 10 disposition of cases on their merits—is greatly outweighed by the factors favoring dismissal. 11 The fifth factor requires the court to consider whether less drastic alternatives can be used 12 to correct the party’s failure that brought about the court’s need to consider dismissal.8 Courts 13 “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 14 explore possible and meaningful alternatives.”9 Because this action cannot realistically proceed 15 without the ability for the court and the defendants to send plaintiff case-related documents, 16

17 5 See Carey v. King, 856 F.2d 1439, 1440–41 (9th Cir. 1988) (dismissal for failure to comply 18 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. 19 Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order). 20 6 In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 21 Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 22 7 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 23 8 Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less 24 drastic alternatives before the party has disobeyed a court order does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that “the 25 persuasive force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of last drastic alternatives prior to disobedience of the court’s order as satisfying this element[,]” i.e., like the 26 “initial granting of leave to amend coupled with the warning of dismissal for failure to 27 comply[,]” have been “eroded” by Yourish). 28 9 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). 1 || filings, and orders, the only alternative is to enter a second order setting another deadline. But 2 || without an updated address, the likelihood that the second order would even reach the plaintiff is 3 || low, so issuing a second order will only delay the inevitable and further squander the court’s 4 || finite resources. Setting another deadline is not a meaningful alternative given these 5 circumstances. So the fifth factor favors dismissal. 6 Having thoroughly weighed these dismissal factors, I find that they weigh in favor of dismissal. IT IS THEREFORE ORDERED that the magistrate judge’s report and 8 recommendation [ECF No. 49] is ADOPTED in full; 9 IT IS FURTHER ORDERED THAT this case is dismissed. The Clerk of Court is 10 || directed to ENTER JUDGMENT ACCORDINGLY and CLOSE THIS CASE. LQ, V2 rere eS, Dorsey 13 Dated: January 28, 2022 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28