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Marjorie Bear Don't Walk v. Charette

United States District Court, D. Montana, Billings Division

January 4, 2018

ROBERT CHARETTE, as Chairman of the Indian Health Board of Billings; et al. Defendants.


          TIMOTHY J. CAVAN United States Magistrate Judge.

         Before the Court are two motions to dismiss, one filed July 27, 2017, by defendant Robert Charette (Doc. 6), and another filed August 30, 2017, by defendants Dorothy Dupree and Indian Health Services (“IHS”) (collectively, the “U.S. Defendants”) (when referring to Charette and the U.S. Defendants, “Defendants”) (Doc. 10). Each motion seeks the dismissal in full of plaintiff Marjorie Bear Don't Walk's Complaint. (Doc. 5.) For the reasons that follow, the Court finds that other circumstances justify the dismissal of this case, and therefore recommends that the case be dismissed with prejudice and that Defendants' motions be denied as moot.

         I. Pertinent Facts

         When considering motions to dismiss, a court must accept as true all well-pleaded allegations of material fact and construe them in the light most favorable to the nonmoving party. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). A court also may consider materials attached to the complaint or incorporated by reference. U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Accordingly, the following facts are derived from Plaintiff's Complaint, in addition to the events occurring in the course of litigation up to this point.

         Plaintiff served as director of the Indian Health Board of Billings (“IHBB”) for thirty years. (Doc. 5 at 2.) Plaintiff alleges she was wrongfully terminated from that position without cause and without “opportunity to represent [her]self.” (Id. at 1.) Plaintiff alleges that she was “kicked out” of the IHBB building and her office, and that her property was “[seized].” (Id.) Plaintiff additionally alleges that “IHS always provided a hostile environment.” (Id. at 2.)

         Plaintiff sets forth additional allegations that appear to be made on behalf of IHBB and are not personal to Plaintiff. For example, Plaintiff alleges that “IHS lied about the IHBB on front page of newspaper and radio/TV, ” but the Complaint does not provide any indication as to either the content of the alleged “lie, ” nor as to how IHS's actions harmed the Plaintiff. (Id. at 2.) Plaintiff also alleges that IHS diverted IHBB funds that were earmarked for an unspecified diabetes program.

         (Id.) But, again, Plaintiff fails to include any details about this claim and, even assuming Plaintiff's allegation is true, it is unclear from Plaintiff's Complaint how she has been harmed personally by IHS's conduct.

         Plaintiff filed her Complaint in the Montana Thirteenth Judicial District Court on May 10, 2017. (Doc. 5.) The U.S. Defendants removed the case to this Court on June 8, 2017. (Doc. 1.) Charette filed his Motion to Dismiss for Failure to State a Claim (“Charette Motion”) on June 27, 2017 (Doc. 6), and the U.S. Defendants filed their Motion to Dismiss or in the Alternative for Summary Judgment (“U.S. Motion”) on August 30, 2017 (Doc. 10). In an attempt to comply with the requirements of Local Rule of Procedure for the District of Montana (L.R.) 7.1(c)(1), the Defendants represented that they had attempted to contact the Plaintiff to obtain her position of the motions, but were unable to do so. (Docs. 6, 10.)

         Under L.R. 7.1(d)(1)(B)(i), Plaintiff's responses were due within twenty-one days after the motions were filed. Plaintiff has not responded to either motion.

         On October 31, 2017, more than three months after the Charette Motion and two months after the U.S. Motion, the Court entered an Order requiring Plaintiff to show cause, on or before November 14, 2017, why the Court should not deem Defendants' motions to be well-taken in accordance with L.R. 7.1(d)(1)(B)(ii), which provides that “failure to file a response brief may be deemed an admission that the motion is well-taken.” (Doc. 15.) The Court's Order explicitly warned Plaintiff that failure to respond to the Order would result in a recommendation to Judge Watters that this case be dismissed with prejudice. (Id. at 2.) Plaintiff's response to the Court's Order is now more than seven weeks overdue, and Plaintiff still has not responded to the Court's Order, or to either of Defendants' motions.

         II. Legal Standard

         Fed. R. Civ. P. 41(b) authorizes the Court to dismiss an action “[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order[.]” Even though the rule states that a defendant may move for dismissal under the specified circumstances, it is well-settled that the Court may dismiss a case on its own motion without awaiting a defense motion. See 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).

         III. Discussion

         In considering dismissal under Rule 41(b), a 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; (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 ...

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