Adamek v. Chanen ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ewa Adamek, No. CV-19-05462-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Herman Chanen, et al., 13 Defendants. 14 15 Of the four Defendants named in this action, two have been dismissed for failure 16 to serve,1 and two have filed motions to dismiss to which pro se Plaintiff Ewa Adamek 17 has filed no response. Defendant Herman Chanen filed a motion to dismiss and compel 18 arbitration on April 27, 2020 (Doc. 15), and Steven Chanen filed a motion to dismiss for 19 failure to state a claim on May 1, 2020 (Doc. 19), such that both response deadlines have 20 passed. 21 LRCiv 7.2(i) provides that if a party opposing a motion “does not serve and file 22 the required answering memorandum, . . . such non-compliance may be deemed a 23 consent to the denial or granting of the motion, and the Court may dispose of the motion 24 summarily.” 25 “Failure to follow a district court’s local rules is a proper ground 26 for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.1995); see also Wystrach v. 27 Ciachurski, 267 F. App’x 606, 608 (9th Cir. 2008) (upholding district court’s decision to 28 1 Kathy Barto and John Dryer were terminated pursuant to the Court’s February 4, 2020 preliminary order (Doc. 10) on May 11, 2020. (Doc. 20.) 1 apply LRCiv 7.2(i) and grant summarily a motion to dismiss because plaintiffs failed to 2 timely respond). “Before dismissing the action, the district court is required to weigh 3 several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 4 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 5 public policy favoring disposition of cases [on] their merits; and (5) the availability of 6 less drastic sanctions.” Ghazali, 46 F.3d at 53. “The sub-parts of the fifth factor are 7 whether the court has considered lesser sanctions, whether it tried them, and whether it 8 warned the recalcitrant party about the possibility of case-dispositive sanctions.” 9 Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th 10 Cir. 2007). Dismissal is proper where “at least four factors support dismissal, or where at 11 least three factors strongly support dismissal.” Yourish v. California Amplifier, 191 F.3d 12 983, 990 (9th Cir. 1999) (internal quotation marks omitted). Nevertheless, “[t]his ‘test’ is 13 not mechanical. It provides the district court with a way to think about what to do, not a 14 set of conditions precedent . . . or a script that the district court must follow.” Conn. Gen. 15 Life, 482 F.3d at 1096. 16 Regarding the first factor, “the public’s interest in expeditious resolution of 17 litigation always favors dismissal” and can “strongly” support dismissal. Yourish, 191 18 F.3d at 990. 19 Regarding the second and third factor, Plaintiff’s failure to respond to the two 20 pending motions to dismiss has not yet consumed much of the Court’s time or created 21 lengthy delay in this action or extra work for Defendants. Cf. Wystrach, 267 F. App’x at 22 608; Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (finding this factor 23 weighed in favor of dismissal where plaintiff’s noncompliance “consumed some of the 24 court’s time that could have been devoted to other cases on the docket”). 25 The fourth factor weighs against summary dismissal. “Because public policy 26 favors disposition of cases on their merits, this factor weighs against dismissal.” 27 Wystrach, 267 F. App’x at 608. 28 The fifth factor requires the Court to consider whether less drastic sanctions could || be appropriate, whether it has already tried them, and whether the noncompliant party has || been warned that the case could be dismissed for failure to comply. Conn. Gen. Life, 482 3 || F.3d at 1096. This Order will serve as a warning. 4 The Court concludes that Plaintiff's failure to respond does not merit summary 5 || dismissal at this time. However, the Court will order Plaintiff to respond to the pending motions to dismiss within 14 days of this Order. If Plaintiff fails to respond to the || pending motions, the action will be dismissed without prejudice, which would be the only 8 || less drastic sanction appropriate under those circumstances. See, e.g., Fader v. City of 9|| Phoenix, 2013 WL 5446676, *2—3 (D. Ariz. 2013) (“[D]ismissal without prejudice is the 10 || only acceptable less drastic sanction 1n this case.”). 11 Accordingly, 12 IT IS ORDERED that Plaintiff shall respond to the pending motions to dismiss 13 || within 14 days of this Order. 14 IT IS FURTHER ORDERED that if Plaintiff fails to respond to the pending 15 || motions to dismiss within 14 days of this Order, the Clerk of Court shall dismiss the 16 || action without prejudice, and without further notice. 17 Dated this 8th day of June, 2020. 18 19 Lom ee” 20 f CC —— Dominic W. Lanza 21 United States District Judge 22 23 24 25 26 27 28 -3-