United States District Court, D. Montana, Helena Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JOHNSTON JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE
August 5, 2019, Defendants filed a Motion to Compel Discovery
contending that Plaintiff Timothy Spencer failed to respond
to discovery requests and refused to confer with
Defendants' counsel regarding the discovery issues.
Defendants requested an order compelling discovery responses
and if Mr. Spencer still failed to comply, Defendants
requested sanctions against Mr. Spencer in the form of
dismissing the case with prejudice. (Doc. 26.)
Order dated August 29, 2019, Mr. Spencer was given until
September 13, 2019 to file a response to Defendants'
Motion to Compel. He was specifically advised that a failure
to file a response to the motion may result in a
recommendation that the matter be dismissed. (Doc. 28.) Mr.
Spencer did not respond.
upon Mr. Spencer's failure to comply with his discovery
obligations and with the Court's August 29, 2019 Order
(Doc. 28), this matter should be dismissed pursuant to Rule
41(b) of the Federal Rules of Civil Procedure for failure to
prosecute and failure to comply with a Court order.
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). Mr.
Spencer refuses to respond to Defendants' discovery
requests and he failed to comply with Court's Order to
respond to Defendants' motion to compel. 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. Spencer
refuses to comply with his discovery obligations and 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 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. Spencer's refusal
to comply with discovery requests prejudices Defendants'
ability to litigate this matter.
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. Spencer was served with discovery requests
on June 7, 2019. (Doc. 26-1.) Counsel attempted to contact
Mr. Spencer and informed him of his responsibilities to
respond to discovery requests. Mr. Spencer nevertheless
continued to not communicate with counsel and did not respond
to discovery requests. Further, he failed to comply with the
Court's Orders to respond to Defendants' motion to
compel. (Docs. 27, 28.) 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 for 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. The Clerk of Court should
be directed to close this matter, enter judgment pursuant to
Rule 58 of the ...