Dawn Devore v. United States Department of Defense ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DAWN DEVORE, et al, ) NO. SACV 20-0563-ODW (KS) 11 Plaintiff, ) 12 v. ) ORDER: DISMISSING ACTION FOR ) 13 ) FAILURE TO PROSECUTE UNITED STATES DEPARTMENT 14 ) OF DEFENSE, et al, ) 15 Defendants. ) 16 _________________________________ ) 17 18 INTRODUCTION 19 20 On March 19, 2020, Dawn Devore, Steffini Sellers, and George Anthony Ban III 21 (collectively, “Plaintiffs”), California residents proceeding pro se, commenced this lawsuit 22 against the United States Department of Defense, several other federal agencies, Northrop 23 Grumman, and, inter alia, 20 unknown Doe defendants. (Dkt. No. 1.) In the original 24 Complaint, Plaintiffs alleged that the Obama Administration, “using NASA,” coordinated with 25 Russia, China, “and more” to implement a global nonconsensual remote medical research 26 program pursuant to which “nanosensor devices” were implanted in the bodies of Plaintiff 27 Devore and her children. (Id.) 28 1 On May 18, 2020, the Court dismissed the Complaint with leave to amend and ordered 2 Plaintiffs to file a First Amended Complaint. (Dkt. No. 5.) On June 22, 2020, Plaintiffs filed 3 a First Amended Complaint (Dkt. No. 6), which the Court also dismissed with leave to amend 4 (Dkt. No. 23). On September 9, 2020, Plaintiffs filed a Second Amended Complaint (Dkt. No. 5 27) and a Motion to Supplement their Second Amended Complaint (Dkt. No. 28). On October 6 27, 2020, the Court granted Plaintiffs one final opportunity to file an amended complaint 7 correcting the defects identified by the Court, thereby effectively granting Plaintiffs’ Motion 8 to Supplement. (Dkt. No. 29.) The Court ordered Plaintiffs to file their Third Amended 9 Complaint no later than December 8, 2020. (Id.) On December 7, 2020, United States 10 Magistrate Judge Patricia Donahue recused herself and the case was reassigned to United 11 States Magistrate Judge Karen L. Stevenson. (Dkt. No. 31.) 12 13 On December 30, 2020, after more than three weeks had passed since Plaintiffs’ 14 deadline for filing a Third Amended Complaint (“TAC”) and no TAC had been filed, the Court 15 ordered Plaintiffs to show cause no later than January 13, 2021 why the Court should not 16 recommend dismissal for failure to prosecute based on Plaintiffs’ failure to comply with the 17 Court’s prior orders. (Dkt. No. 33.) On February 5, 2021, after more than three weeks had 18 passed without any communication from Plaintiffs, the Court issued a Report and 19 Recommendation in which it recommended dismissal for failure to prosecute. (Dkt. No. 35.) 20 Plaintiffs were ordered to file objections, if any, no later than February 26, 2021. (Dkt. No. 21 36.) 22 23 On February 8, 2021, Plaintiffs filed a Response to the Court’s December 30, 2020 24 Order to Show Cause in which they asked the Court to continue the deadlines for filing a Third 25 Amended Complaint. (Dkt. No. 36.) Out of an extraordinary abundance of caution and in the 26 interests of justice, the Court granted Plaintiffs a one week extension of the deadline—through 27 the close of business on March 5, 2021—to file either objections to the Court’s Report and 28 1 Recommendation or a Third Amended Complaint correcting the defects in pleading previously 2 identified by the Court. 3 4 On March 8, 2021, three days after the March 5, 2021 deadline, Plaintiffs filed a Third 5 Amended Complaint (the “TAC”) (Dkt. No. 44) and, separately, a signature page (Dkt. No. 6 45). In the TAC, Plaintiffs continued to allege, inter alia, that Congress authorized the 7 implantation of medical monitoring devices in U.S. citizens’ bodies without their knowledge 8 or consent, and Plaintiff Devore had three of these devices surgically removed from her body. 9 (Id. at 9, ¶¶ 27-30.) In the interests of justice and out of an abundance of caution, the Court 10 vacated the Report and Recommendation, dismissed the TAC for failure to state a claim, and 11 gave Plaintiffs one final opportunity to file a viable complaint. (Dkt. No. 46.) The Court 12 ordered Plaintiff to file a Fourth Amended Complaint correcting the defects identified by the 13 Court no later than April 19, 2021. (Id.) On May 14, 2021, after more than three weeks had 14 passed since Plaintiffs’ April 19, 2021 deadline and no Fourth Amended Complaint had been 15 filed, the Court ordered Plaintiff to show cause no later than May 21, 2021 why the action 16 should not be dismissed for failure to prosecute. (Dkt. No. 47.) The Court stated that it did 17 not anticipate granting any additional extensions and Plaintiffs’ failure to timely comply would 18 result in a recommendation of dismissal. (Id.) 19 20 More than a week has now passed since Plaintiffs’ deadline for responding to the Court’s 21 May 14, 2021 Order to Show Cause and Plaintiffs have not responded, filed a Fourth Amended 22 Complaint, or otherwise communicated with the Court about their case. Accordingly, the case 23 is now subject to dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and 24 Local Rule 41-1. 25 \\ 26 \\ 27 \\ 28 \\ 1 DISCUSSION 2 3 Rule 41(b) of the Federal Rules of Civil Procedure grants federal district courts the 4 authority to sua sponte dismiss actions for failure to prosecute. Link v. Wabash R. Co., 370 5 U.S. 626, 629-30 (1962). In determining whether dismissal for lack of prosecution is proper, 6 a court must weigh several factors, including: (1) the public’s interest in expeditious resolution 7 of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendants; 8 (4) the availability of less drastic sanctions; and (5) the public policy favoring the disposition 9 of cases on their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik v. 10 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). 11 12 In this case, the first two factors—public interest in expeditious resolution of litigation 13 and the need to manage the Court’s docket—weigh in favor of dismissal. More than a year 14 has passed since the case was initially filed and Plaintiffs have yet to file a viable initial 15 pleading despite the Court’s orders directing them to do so. Further, when asked to show cause 16 for their failure to file a Fourth Amended Complaint, Plaintiffs did not respond. Consequently, 17 more than two months have passed since Plaintiffs’ last communication with the Court in this 18 case. Plaintiffs’ failure to file a viable amended complaint, request an extension of time, or 19 show good cause for their delay hinders the Court’s ability to move this case toward disposition 20 and indicates that Plaintiffs do not intend to litigate this action diligently. 21 22 Generally, the third factor—prejudice to Defendants—does not counsel in favor of 23 dismissal when no viable pleading exists. In this case, however, Plaintiffs proceeded to serve 24 Defendants, despite the lack of authorization from the Court to do so. (See Dkt. Nos. 7-22.) 25 The Ninth Circuit has held that prejudice may be presumed from unreasonable delay. See In 26 re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994); Moore v. Teflon Commc’ns. Corp., 589 F.2d 27 959, 967-68 (9th Cir. 1978). Plaintiffs’ unauthorized service of Defendants coupled with their 28 months of inaction and repeated failure to correct the pleading defects identified by the Court 1 in this matter is an unreasonable delay. In the absence of any explanation, non-frivolous or 2 otherwise, for Plaintiffs’ delay, the Court presumes prejudice. See Laurino v. Syringa Gen. 3 Hosp., 279 F.3d 750, 753 (9th Cir. 2002) (presumption of prejudice can be rebutted by a non- 4 frivolous explanation); Pagtalunan, 291 F.3d at 642 (citing Yourish v. California Amplifier, 5 191 F.3d 983, 991 (9th Cir. 1999)). 6 7 The fourth factor—the availability of less drastic sanctions—ordinarily counsels against 8 dismissal. However, the Court has repeatedly gone above and beyond to avoid outright 9 dismissal. Most recently, it vacated the prior Report and Recommendation in the interests of 10 justice in order to give Plaintiffs one final opportunity to file a complaint that states a claim 11 for relief. Then, when no Fourth Amended Complaint was filed, the Court again attempted to 12 avoid dismissal by giving Plaintiff one final extension of time to comply with court orders and 13 warned Plaintiffs that their failure to timely respond would result in a recommendation of 14 dismissal. Plaintiffs did not respond or seize the opportunities to avoid dismissal advanced by 15 the Court. Thus, the Court explored the only meaningful alternatives to dismissal in its arsenal 16 and found that they were not effective. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 17 Cir. 1986) (“The district court need not exhaust every sanction short of dismissal before finally 18 dismissing a case, but must explore possible and meaningful alternatives.”) (citation omitted). 19 The Court therefore concludes that sanctions other than dismissal are no longer appropriate. 20 21 Only the fifth factor, the general policy favoring resolution of cases on the merits, 22 arguably favors retention of this action on the Court’s docket. It is, however, the responsibility 23 of the moving party to move the case toward disposition on the merits at a reasonable pace and 24 to refrain from dilatory and evasive tactics. Morris v. Morgan Stanley & Co., 942 F.2d 648, 25 652 (9th Cir. 1991). The Court cannot dispose of a case on its merits when the plaintiffs fail 26 to move the case forward, do not comply with court orders, and do not explain their silence or 27 delay. Plaintiffs have now allowed this matter to languish on the Court’s docket for nearly 16 28 months without a viable initial pleading despite the Court’s repeated instructions and warnings. 1 || It therefore appears that the Court’s retention of this action would not increase the likelihood 2 || that the matter would be resolved on its merits. 3 4 CONCLUSION AND ORDER 5 6 For the foregoing reasons, IT IS ORDERED that this action is DISMISSED and 7 || Judgment shall be entered separately dismissing this action without prejudice. 8 ss 9 || DATE: May 24, 2021 a wn bid Lud oh 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 || Order Presented By: aun Bhossnsn 18 KAREN L. STEVENSON 19 || UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28