Anderson v. Fong ( 2021 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 MICAH ANDERSON, Case No. 2:21-cv-00429-RFB-BNW 4 Plaintiff ORDER 5 v. 6 DR. JOHNNY FONG, 7 Defendant 8 9 On March 22, 2021, this Court issued an order directing Plaintiff to file a fully 10 complete application to proceed in forma pauperis or pay the full $402 filing fee on or 11 before May 17, 2021. (ECF No. 3). On March 22, 2021, the Court received a return mail 12 receipt indicating the Court's March 22, 2021 order (ECF No. 3) was undeliverable. (ECF 13 No. 4). The May 17, 2021 deadline has now expired, and Plaintiff has not filed a fully 14 complete application to proceed in forma pauperis, paid the full $402 filing fee, or 15 otherwise responded to the Court’s order. 16 District courts have the inherent power to control their dockets and “[i]n the 17 exercise of that power, they may impose sanctions including, where appropriate . . . 18 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 19 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 20 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 21 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for 22 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 23 1992) (affirming dismissal for failure to comply with an order requiring amendment of 24 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal 25 for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 26 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (affirming 27 dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 28 1424 (9th Cir. 1986) (affirming dismissal for lack of prosecution and failure to comply with 1 local rules). 2 In determining whether to dismiss an action for lack of prosecution, failure to obey 3 a court order, or failure to comply with local rules, the court must consider several factors: 4 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 5 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 6 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 7 See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 8 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 9 Here, the Court finds that the first two factors, the public’s interest in expeditiously 10 resolving this litigation and the Court’s interest in managing the docket, weigh in favor of 11 dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of 12 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 13 in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air 14 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring 15 disposition of cases on their merits—is greatly outweighed by the factors in favor of 16 dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey 17 the court’s order will result in dismissal satisfies the “consideration of alternatives” 18 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 19 F.2d at 1424. The Court’s order requiring Plaintiff to file a fully complete application to 20 proceed in forma pauperis or pay the full $402 filing fee on or before May 17, 2021 21 expressly stated: “IT IS FURTHER ORDERED that, if Plaintiff does not file a fully 22 complete application to proceed in forma pauperis with all three documents or pay the full 23 $402 filing fee for a civil action on or before May 17, 2021, this case will be subject to 24 dismissal without prejudice for Plaintiff to refile the case with the Court, under a new case 25 number, when Plaintiff is has all three documents needed to file a complete application 26 to proceed in forma pauperis or pays the the full $402 filing fee.” (ECF No. 3 at 3). Thus, 27 Plaintiff had adequate warning that dismissal would result from noncompliance with the 28 Court’s order to file a fully complete application to proceed in forma pauperis or pay the 1| full $402 filing fee on or before May 17, 2021. 2 IT IS THEREFORE ORDERED that this action is dismissed without prejudice 3 based on Plaintiff's failure to file a fully complete application to proceed in forma pauperis or pay the full $402 filing fee in compliance with this Court’s order dated March 22, 2021. (ECF No. 3). 6 IT IS FURTHER ORDERED that the Plaintiff may move to reopen this case and 7 | vacate the judgment by filing a motion for reconsideration of this order. In this motion, the 8| Plaintiff would need to explain that circumstances which led to him not being able to update his address as directed by the Court. If the Court finds there is good cause or a 10 | reasonable explanation for the failure to update the address, the Court will reopen the case and vacate the judgment. 12 IT IS FURTHER ORDERED that the Clerk of Court will close the case and enter 13 | judgment accordingly. No other documents may be filed in this now-closed case. 14 15 —_— 16 DATED: May 26, 2021. AK 17 RICHARD F-S@0HVVARE, II 48 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 -3-