United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Timothy J. Cavan United States Magistrate Judge
3, 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. 12 at
1-3, ¶ I(A), (B).) Mr. Royer did not timely file a
disclosure statement. On August 14, 2019, the Court issued an
Order requiring Mr. Royer to file this statement on or before
September 13, 2019. Mr. Royer 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. 16.) Mr. Royer did not respond.
upon Mr. Royer's failure to comply with the Court's
Orders dated June 3, 2019 (Doc. 12) and August 14, 2019 (Doc.
16), 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. Royer 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. Royer
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. Royer'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. Royer was made aware of his
disclosure obligations in the Court's June 3, 2019 and
August 14, 2019 Orders. (Docs. 12, 16.) Mr. Royer did not
respond. The Court can envision no further alternatives to
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 Federal Rules of
Clerk of Court should be 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 ...