United States District Court, D. Montana, Missoula Division
L. Christensen Chief Judge
Toby Kittrell, is a prisoner proceeding in forma pauperis and
without counsel. On October 2, 2018, Defendants filed a
motion for summary judgment. (Doc. 20.) Mr. Kittrell did not
file a response to Defendants' motion and on November 19,
2018, the Court issued an Order requiring Mr. Kittrell to
show cause why this matter should not be recommended for
dismissal for failure to prosecute (Doc. 24). Mr. Kittrell
still did not respond.
upon Mr. Kittrell's failure to respond to Defendants'
Motion for Summary Judgment (Doc. 20) and failure to respond
to the Court's November 19, 2018 Order, this matter
should be dismissed pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure.
Court has the inherent power to sua sponte dismiss a case for
lack of prosecution or failure to comply with a court order.
Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
1986); see also Fed.R.Civ.P. 41(b); Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).
Dismissal, however, is a harsh penalty and should be imposed
as a sanction only in extreme circumstances. Henderson, 779
F.2d at 1423.
following factors must be considered before dismissal is
imposed as a sanction for failure to prosecute or failure to
comply with a court order: (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/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 (9th Cir. 2002) (citing Ferdik, 963 F.2d at
public's interest in expeditious resolution of litigation
always favors dismissal." Yourish v. California
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). This case
is at a critical stage in that discovery has closed and a
dispositive motion has been filed. Mr. Kittrell failed to
respond to the dispositive motion and to this Court's
recent Order. This factor weighs in favor of dismissal.
much the same reasons, the second factor supports dismissal.
The Ninth Circuit has noted that "[i]t is incumbent upon
us to preserve the district courts' power to manage their
docket without being subject to the endless vexatious
noncompliance of litigants. ..." Ferdik, 963 F.2d at
1261. "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 639 (citing Yourish, 191 F.3d 983). The
Court must be able to manage its docket. It cannot do so if
Mr. Kittrell refuses to comply with Court imposed deadlines.
Therefore, this factor favors dismissal.
third factor requires the Court to weigh the risk of
prejudice to the Defendants. "To prove prejudice, a
defendant must establish that plaintiffs actions impaired
defendant's ability to proceed to trial or threatened to
interfere with the rightful decision of the case."
Malone v. United States Postal Service, 833 F.2d
128, 131 (9th Cir. 1987). Mr. Kittrell's refusal to
litigate this matter makes prejudice a foregone conclusion.
The longer this matter sits, the more prejudice to
Court has considered and provided less drastic alternatives.
Alternatives may include "allowing further amended
complaints, allowing additional time, or insisting that
appellant associate experienced counsel." Nevijel v.
North Coast Life Insurance Co., 651 F.2d 671, 674 (9th
Cir. 1981). Although less drastic alternatives to dismissal
should be considered, the court is not required to exhaust
all such alternatives prior to dismissal. Id. The
Court gave Mr. Kittrell an opportunity to explain why he
failed to respond to Defendants' motion for summary (Doc.
24) and he did not respond. The Court can envision no further
alternatives to dismissal.
last factor weighs against dismissal because public policy
favors the disposition of cases on their merits. Pagtalunan,
291 F.3d 639 (citing Hernandez v. City of El Monte,
138 F.3d 393, 399 (9th Cir. 1998)). But in light of the other
four factors favoring dismissal, the Court finds that this
matter should be dismissed for failure to prosecute and
failure to comply with the Court's orders.
upon the foregoing, the Court issues the following:
matter is DISMISSED pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure. The Clerk of Court is directed to
close this matter, enter judgment pursuant to Rule 58 of the
Federal Rules of Civil Procedure, and terminate all pending
Clerk of Court is directed to have the docket reflect that
the Court certifies pursuant to Rule 24(a)(3)(A) of the
Federal Rules of Appellate Procedure that any ...