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Thiel v. Veneman

United States District Court, Ninth Circuit

October 10, 2013

ANNETTE L. THIEL, d/b/a SWEET VALLEY PRODUCE, Plaintiff,
v.
ANN M. VENEMAN, SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants.

FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CAROLYN S. OSTBY, Magistrate Judge.

I. Background

On June 12, 2013, attorney Terry F. Schaplow moved to withdraw as Plaintiff Annette L. Thiel's ("Thiel") counsel of record, indicating that he had attempted to contact Thiel by phone (both cell phone and land line), by email, and by U.S. Mail, all with no response from Thiel. ECF 96. [1] He informed the Court that he had sent an email to Thiel to advise her of his motion to withdraw. Id.

Based on the representations in Mr. Schaplow's Motion and Declaration ( ECF 96, 96-1), the Court granted the motion, and on June 13, 2013, directed Thiel to immediately retain new counsel or appear pro se. ECF 98. This Order instructed that "[f]ailure to retain new counsel or appear pro se within 30 days may result in the imposition of sanctions or dismissal of Plaintiff's case." Id . at 2. Plaintiff did not respond.

Thus, on July 25, 2013, the Court ordered Thiel to appear in writing by August 7 to show cause why her case should not be dismissed for failure to comply with the Court's June 13, 2013 Order. ECF 101. Thiel did not properly file a response. She did, however, send a facsimile transmission to the Clerk of Court's office, requesting an extension of time to respond to the Court's show cause order due to injuries she sustained in a car accident.

By order dated August 14, 2013, the Court effectively granted Thiel's request for an extension, and ordered Thiel to appear in person on September 26, 2013, at the James F. Battin United States Courthouse in Billings, Montana, to show cause why her case should not be dismissed with prejudice for failure to comply with the Court's prior orders. ECF 102. This order indicated that "[f]ailure to appear will result in dismissal of her case." For Court scheduling reasons, this hearing was rescheduled for October 9, 2013. ECF 103.

II. Show Cause Hearing

The Court convened the show cause hearing at the scheduled time on October 9, 2013. AUSA Mark Smith appeared on behalf of the United States. Thiel did not appear. The Court noted Thiel's absence and made a record of the Court's prior orders requiring Thiel to either appear pro se or retain counsel. Mr. Smith requested the case be dismissed.

III. Analysis

Fed. R. Civ. P. 41(b) authorizes a defendant to move the Court to dismiss an action "[i]f the plaintiff fails... to comply with... a court order[.]" The Court may dismiss a case on its own motion without awaiting a defense motion. See, e.g., Link v. Wabash R.R., 370 U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United States Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). In considering dismissal, the Court must weigh five factors: (1) the public's interest in expeditious resolution of litigation; (2) the Court's need to manage its docket; (3) the risk of prejudice to the defendants or respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002), cert. denied, (2003) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

1. Expeditious Resolution

"The public's interest in expeditious resolution of litigation always favors dismissal." Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1990). This case has been pending since 2009. Moreover, Thiel has had more than four months to appear pro se or retain new counsel since the Court's first order requiring her to do so. To date, she has failed to comply and also has failed to show cause for her failure. Thiel is in violation of the Court's order. And, by her absence on October 9, 2013, Thiel has also failed to comply with the Court's August 14, 2013 order requiring her to appear at the show cause hearing. This factor weighs in favor of dismissal.

2. Docket Management

"The trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest." Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 990). Litigants who do not obey the Court's orders disrupt the Court's handling of other matters by consuming time and resources needed by ...


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