Yabut v. Chipotle

• Court: District Court, D. Nevada
• Decided: January 13, 2025
• Docket: 2:24-cv-01223
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

5 Robbyjoe V Yabut, Case No. 2:24-cv-01223-CDS-MDC

6 REPORT AND RECOMMENDATION TO Plaintiffs, DISMISS CASE 7 vs.

8 Chipotle, et al.,

9 Defendants.

10 The Court previously ordered plaintiff Robbyjoe V Yabut to: (1) show cause, in writing, 11 regarding what steps he has taken to pay the partial filing fee, (2) pay the initial partial filing fee, or (3) 12 file a new certified copy of the inmate trust fund account statement. See ECF Nos. 6 and 7. Plaintiff has 13 not filed anything or paid the filing fee. The Court confirmed with the Clerk’s office finance department 14 that plaintiff has not paid the filing fee in this case. Plaintiff is a frequent filer in this Court, and he has 15 paid the initial partial filing fee in at least one other case. See 2:24-cv-01014-APG-MDC, Yabut v. Las 16 Vegas Metro Police Department, (D. Nev. 2024). Plaintiff has not paid the filing fee in this case or 17 responded to the Court’s Order to Show Cause. It appears that plaintiff has abandoned this case. The 18 Court recommends that this case be dismissed. 19 I. LEGAL STANDARD 20 District courts have the inherent power to control their dockets and “[i]n the exercise of that 21 power, they may impose sanctions including, where appropriate . . . dismissal” of a case. Thompson v. 22 Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action 23 based on a party’s failure to obey a court order or comply with local rules. Malone v. U.S. Postal 24 Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson 25 1 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply 2 with local rules). 3 In determining whether to dismiss an action on one of these grounds, the court must consider: (1) 4 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 5 the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 6 and (5) the availability of less drastic alternatives. In re Phenylpropanolamine Prod. Liab. Litig., 460 7 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 8 1987)). 9 II. ANALYSIS 10 The first two factors, the public’s interest in expeditiously resolving this litigation and the court’s 11 interest in managing its docket, weigh in favor of dismissal of the plaintiffs’ claims. Plaintiff has chosen 12 not to comply with this Court’s Order. The third factor, risk of prejudice to defendants, also weighs in 13 favor of dismissal because a presumption of injury arises from the occurrence of unreasonable delay in 14 prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor— 15 the public policy favoring disposition of cases on their merits—is greatly outweighed by the factors 16 favoring dismissal. 17 The fifth factor requires the Court to consider whether less drastic alternatives can be used to 18 correct the party’s failure that brought about the Court’s need to consider dismissal. Yourish v. Cal. 19 Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before 20 the party has disobeyed a Court order does not satisfy this factor); accord Pagtalunan v. Galaza, 291 21 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases 22 that “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the Court’s Order as 23 satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled with the warning of 24 dismissal for failure to comply[,]” have been “eroded” by Yourish). Courts “need not exhaust every 25 1 sanction short of dismissal before finally dismissing a case but must explore possible and meaningful 2 alternatives.” Henderson, 779 F.2d at 1424. 3 This Court cannot operate without collecting reasonable fees and litigation cannot progress 4 without a plaintiff’s compliance with Court orders. The only alternative is to enter another order setting 5 another deadline. Issuing another order, however, will only delay the inevitable and further squander the 6 Court’s finite resources. Setting another deadline is not a meaningful alternative given these 7 circumstances. The fifth factor favors dismissal. 8 After weighing these dismissal factors, the Court finds that they weigh in favor of dismissal. 9 Plaintiff has apparently abandoned this case. For the reasons discussed in this Order and the Court’s 10 earlier Orders (ECF Nos. 6 and 7), plaintiff’s case should be dismissed. 11 IT IS RECOMMENDED THAT this case be DISMISSED. 12 Dated: January 13, 2025. 13

14 _________________________

15 Hon. Maximiliano D. Couvillier III United States Magistrate Judge 16 NOTICE 17 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 18 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 19 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 20 21 may determine that an appeal has been waived due to the failure to file objections within the specified 22 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 23 objections within the specified time and (2) failure to properly address and brief the objectionable issues 24 waives the right to appeal the District Court's order and/or appeal factual issues from the order of the 25 District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. 1 Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR IA 3-1, plaintiffs must immediately file written 2 notification with the court of any change of address. The notification must include proof of service upon 3 4 each opposing party’s attorney, or upon the opposing party if the party is unrepresented by counsel. 5 Failure to comply with this rule may result in dismissal of the action. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25