United States District Court, D. Montana, Helena Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Johnston United States Magistrate Judge
Rory Davis is a former prisoner proceeding in forma pauperis
and without counsel. On January 31, 2019, this Court issued a
Scheduling Order requiring the parties to file an initial
disclosure statement within 60 days and to exchange documents
which may be used in proving or denying any party's
claims or defenses. (Doc. 20 at 1-3, ¶ I(A), (B).) Mr.
Davis did not timely file a disclosure statement. On April
22, 2019, the Court issued an Order requiring Mr. Davis to
file this statement on or before May 17, 2019. Mr. Davis was
specifically advised that a failure to do so would result in
a recommendation that this matter be dismissed for failure to
comply with a court order. (Doc. 30.) Mr. Davis did not
upon Mr. Davis's failure to comply with the Court's
Orders dated January 31, 2019 (Doc. 20) and April 22, 2019
(Doc. 30), this matter should be dismissed pursuant to Rule
41(b) of the Federal Rules of Civil Procedure. The 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 it is the beginning of the
discovery process and Mr. Davis has failed to comply with
Court imposed discovery obligations.
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. Davis
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 plaintiff's 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. Davis'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. Mr. Davis was made aware of his disclosure
obligations in the Court's January 31, 2019 and April 22,
2019 Orders. (Docs. 20, 30.) Mr. Davis 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 should be DISMISSED pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure.
Clerk of Court should be directed to close this matter and
enter judgment pursuant to Rule 58 of the ...