United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE
TIMOTHY J. CAVAN United States Magistrate Judge.
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.
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.
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.)
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.
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.
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.)
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.
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
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).
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 ...