United States District Court, D. Montana, Helena Division
L. CHRISTENSEN, CHIEF JUDGE
February 22, 2019, this Court ordered Mr. Ellison to file a
disclosure statement as required by the December 15, 2017
Scheduling Order (Doc. 41). This was Mr. Ellison's fourth
chance to file his disclosure statement and yet Mr. Ellison
did not comply. Mr. Ellison was advised in the February 22,
2019 Order that the Court would not tolerate any further
delays by Mr. Ellison in filing his disclosure statement
which was initially due to be filed on or before February 19,
2018. (Scheduling Order, Doc. 41 at 1-3.) Therefore, this
matter will be dismissed for failure to comply with Court
of background, the Court issued an Order on July 11, 2018,
requiring Mr. Ellison to file his disclosure statement as
required by Paragraph 1(A) of the Court's Scheduling
Order (Doc. 41) within 30 days. (Doc. 73.) Mr. Ellison was
specifically advised that a failure to comply with the
Court's Order would result in a recommendation that this
matter be dismissed. (Doc. 73 at 10.); see also
FedR.Civ.P. 41(b); Malone v. U.S. Postal Service, 833
F.2d 128 (9th Cir. 1987)(a court may dismiss an action, with
prejudice, for failure to obey a court order). He did not
file a disclosure statement and on August 30, 2018, Judge
Johnston issued a Findings and Recommendations to dismiss
this matter pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure for failure to prosecute. (Doc. 75.) In his
objections to the Recommendations, Mr. Ellison claimed that
he was under the impression that his entire case was stayed
pending his appeal to the Ninth Circuit Court of Appeals.
(Doc. 76.) Therefore, on December 10, 2018, this Court found
that Mr. Ellison raised sufficient concerns in his objections
for the Court to give him one final opportunity to file his
initial disclosures. Mr. Ellison was given until January 11,
2018 to do so. (Doc. 80.) Instead, Mr. Ellison filed a
"Motion for Reconsideration with Cause for the Named
Defendants to be Named to this Complaint Filing of
Disclosures." (Doc. 82.) The Court construed that filing
as an objection to non-dispositive order, denied the
objection, and required Mr. Ellison to file his disclosure
statement by March 22, 2019. (Doc. 83.) Mr. Ellison has still
not filed a disclosure statement.
upon Mr. Ellison's failure to comply with the Court's
December 15, 2017 Scheduling Order (Doc. 41) and the Orders
of July 11, 2018 (Doc. 73), December 10, 2018 (Doc. 80), and
February 22, 2019 (Doc. 83), this matter will be dismissed
pursuant to Rule 41(b) of the Federal Rules of Civil
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.2datl423.
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
was filed nearly two years ago and yet it is still in its
initial discovery phase because Mr. Ellison has failed to
comply with Court imposed discovery obligations. 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. Ellison refuses to comply
with Court imposed deadlines. Therefore, this factor favors
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. Ellison's refusal to comply
with Court Orders makes prejudice a foregone conclusion. The
longer this matter sits, the more prejudice to Defendants.
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. Mr.
Ellison was made aware of his disclosure obligations in the
Court's December 17, 2017 Scheduling Order. (Doc. 41.)
The Court gave Mr. Ellison additional time to comply with his
disclosure obligations and warned him about the consequences
of not complying in its Orders dated July 11, 2018, December
10, 2018, and February 22, 2019. (Docs. 73, 80, 83.) Mr.
Ellison 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
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