Block v. Health Plan of Nevada ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 ANN BLOCK, Case No. 2:24-cv-00781-APG-BNW 5 Plaintiff, REPORT AND RECOMMENDATION 6 v. 7 HEALTH PLAN OF NEVADA, 8 Defendant. 9 10 On May 29, 2024, the Court granted Plaintiff’s application to proceed in forma pauperis 11 and screened her complaint. ECF No. 5. Although the Court dismissed Plaintiff’s claims, it 12 allowed Plaintiff leave to amend and gave her until June 28, 2024 to file an amended complaint. 13 Id. Plaintiff failed to comply with the deadline and to date has not filed an amended complaint. As 14 a result, the Court recommends that Plaintiff’s case be dismissed without prejudice. 15 The law permits a district court to dismiss an action based on a party’s failure to comply 16 with a court order. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for 17 failure to comply with an order requiring amendment of complaint). In determining whether to 18 dismiss an action on this ground, the court must consider: (1) the public’s interest in expeditious 19 resolution of litigation, (2) the court’s need to manage its docket, (3) the risk of prejudice to the 20 defendants, (4) the public policy favoring disposition of cases on their merits, and (5) the 21 availability of less-drastic alternatives. In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 22 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 23 1987)). 24 The first two factors, the public’s interest in expeditiously resolving this litigation and the 25 Court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s claims. The third 26 factor, risk of prejudice to Defendants, also weighs in favor of dismissal because a presumption of 27 injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court 1 or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 2 || factor—the public policy favoring disposition of cases on their merits— weighs against dismissal. 3 The fifth factor requires the Court to consider whether less-drastic alternatives can be used 4 || to correct the party’s failure that brought about the Court’s need to consider dismissal. Courts 5 || “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 6 || explore possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 7 || Cir. 1986). Because this action cannot proceed without an operative complaint, the only 8 || alternative is to enter another order setting another deadline. The circumstances here do not 9 || indicate that Plaintiff needs additional time. Therefore, setting another deadline is not a 10 || meaningful alternative. So, the fifth factor favors dismissal. 11 In balance, the factors above favor a recommendation of dismissal. See Hernandez v. City 12 || of El Monte, 138 F.3d 393 (9th Cir. 1998) (holding that dismissal is proper where at least four 13 || factors support dismissal or where at least three factors “strongly” support dismissal). 14 IT IS THEREFORE RECOMMENDED that this action is DISMISSED without 15 || prejudice for failure to comply with the Court’s amended complaint deadline. 16 NOTICE 17 This report and recommendation is submitted to the United States district judge assigned 18 || to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 19 || may file a written objection supported by points and authorities within fourteen days of being 20 || served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 21 || objection may waive the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153, 22 || 1157 (9th Cir. 1991). 23 24 DATED: July 15, 2024 25 Lr gm be UC Enon B DA WEKSLER 26 UNITED STATES MAGISTRATE JUDGE 27 28