Armijo v. Ozone Networks, Inc. ( 2024 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ROBERT ARMIJO, Case No. 3:22-cv-00112-MMD-CLB 7 Plaintiff, ORDER v. 8 LOOKSRARE, 9 Defendant. 10 11 12 Plaintiff Robert Armijo sued Defendants Ozone Networks, Inc., doing business as 13 Opensea; Yuga Labs, LLC, doing business as Bored Ape Yacht Club (“BAYC”); and 14 LooksRare after Plaintiff’s non-fungible tokens (“NFTs”) were stolen. (ECF No. 62.) The 15 Court dismissed Armijo’s claims against Yuga Labs and Ozone Networks. (ECF No. 109.) 16 There had been no activity at that time as to LooksRare. (ECF No. 110.) Despite 17 suggesting in response to Court orders in early 2023 that Armijo was working on serving 18 LooksRare, Armijo had still not filed proper proof of service of LooksRare by September 19 17, 2024. (ECF No. 120.) The Court accordingly gave him one more 30 day period to file 20 proper proof of service as to LooksRare, warning him that the Court would dismiss his 21 claims against LooksRare for failure to prosecute and close this case if he did not timely 22 comply. (Id.) Because Armijo did not timely comply, and as further explained below, the 23 Court will dismiss LooksRare without prejudice and close this case. 24 District courts have the inherent power to control their dockets and “[i]n the 25 exercise of that power, they may impose sanctions including, where appropriate . . . 26 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 27 (9th Cir. 1986) (citation omitted). A court may dismiss an action based on a party’s failure 28 to obey a court order. See Malone v. U.S. Postal Service, 833 F.2d 128, 130-32 (9th Cir. 2 to dismiss an action on one of these grounds, the Court must consider (1) the public’s 3 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 4 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 5 cases on their merits; and (5) the availability of less drastic alternatives. See In re 6 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 7 Malone, 833 F.2d at 130). 8 The first two factors, the public’s interest in expeditiously resolving this litigation 9 and the Court’s interest in managing its docket, weigh in favor of dismissal of Armijo’s 10 claims against LooksRare. The third factor, risk of prejudice to LooksRare, also weighs in 11 favor of dismissal because a presumption of injury arises from the occurrence of 12 unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See 13 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public 14 policy favoring disposition of cases on their merits—is greatly outweighed by the factors 15 favoring dismissal. 16 The fifth factor requires the Court to consider whether less drastic alternatives can 17 be used to correct the party’s failure that brought about the Court’s need to consider 18 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 19 that considering less drastic alternatives before the party has disobeyed a court order 20 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 21 Cir. 2002) (explaining that Yourish “eroded” “the persuasive force of” earlier Ninth Circuit 22 cases that “implicitly accepted pursuit of less drastic alternatives prior to disobedience of 23 the court’s order as satisfying this element[,]” like the “initial granting of leave to amend 24 coupled with the warning of dismissal for failure to comply”). Courts “need not exhaust 25 every sanction short of dismissal before finally dismissing a case, but must explore 26 possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 27 Cir. 1986) (citation omitted). 28 /// 1 Because this action cannot realistically proceed without proper service of 2 || LooksRare, the only alternative to dismissal is to enter another order setting another 3 || deadline. But the Court already gave Armijo over a year to serve LooksRare (ECF Nos. 4 || 110, 120), and then more recently gave him another 30 days (ECF No. 120). And Armijo 5 || still has not filed proper proof of service as to LooksRare. Setting another deadline is not 6 || a meaningful alternative given these circumstances, so the fifth factor favors dismissal. 7 Having thoroughly considered these dismissal factors, the Court finds that they 8 || weigh in favor of dismissal. It is therefore ordered that LooksRare is dismissed from this 9 || case without prejudice. 10 It is further ordered that, as this resolves the last outstanding issue in it, the Clerk 11 || of Court is directed to close this case. 12 DATED THIS 18" Day of October 2024. 13 15 □□□□□□□□□□□□□□□□□□□□□□□□□ 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28