Parker v. Ed ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * Case No. 3:23-cv-00137-MMD-CSD 6 DIONDRAE PARKER, ORDER 7 Plaintiff, 8 v. 9 NED SCHUERING, et al., 10 Defendants. 11 12 On October 4, 2023, the Court alerted Diondrae Parker that the Nevada Office of 13 the Attorney General did not accept service of process on behalf of Defendant Ned 14 Schuering and that November 29, 2023, was the deadline to complete service of process 15 upon him under Federal Rule of Civil Procedure 4(m). (ECF No. 14.) The Court then 16 extended that deadline to January 17, 2024. (ECF No. 22.) Four months after the 17 extended deadline passed, the Court issued its notice of intent to dismiss Schuering 18 pursuant to Rule 4(m) because no proper proof of service upon him had been filed. (ECF 19 No. 31 (“Rule 4(m) Dismissal Notice”).) Parker was warned that Scheuring would be 20 dismissed without prejudice if no proof of service was filed with the Clerk of Court by June 21 15, 2024. (Id.) That most recent deadline has long since expired, and Parker still has not 22 filed proof of service upon Schuering. 23 District courts have the inherent power to control their dockets, and in exercising 24 that power, “they may impose sanctions including, where appropriate . . . dismissal” of a 25 case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986) 26 (citation omitted). A district court may dismiss an action, with prejudice, based on a party’s 27 failure to obey a court’s order. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 28 1992) (dismissal for failure to comply with an order requiring amendment of complaint); 1 Malone v. U.S. Postal Serv., 833 F.2d 128, 130-31 (9th Cir. 1987) (affirming dismissal for 2 failure to comply with court order). In determining whether to dismiss an action for failure 3 to comply with an order, the Court must consider several factors: (1) the public’s interest 4 in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the 5 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 6 their merits; and (5) the availability of less drastic alternatives. See In re 7 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 8 Malone, 833 F.2d at 130). 9 In the instant case, the Court finds that the first two factors, the public’s interest in 10 expeditiously resolving this litigation and the Court’s interest in managing the docket, 11 weigh in favor of dismissal. The third factor, risk of prejudice to defendant, also weighs in 12 favor of dismissal, since a presumption of injury arises from the occurrence of 13 unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See 14 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy 15 favoring disposition of cases on their merits—is greatly outweighed by the factors in favor 16 of dismissal discussed herein. 17 Finally, a court’s warning to a party that his failure to obey an order will result in 18 dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 19 1262. The Court’s Rule 4(m) Dismissal Notice expressly stated that “this action may be 20 dismissed without prejudice as to above parties unless proof of service is filed with the 21 clerk by 06/15/2024.” (ECF No. 31.) The Court thus adequately warned Parker that 22 Schuering would be dismissed if Parker did not comply with the order to file proof of 23 service upon Schuering. Moreover, there are few viable alternatives to the dismissal of 24 Schuering, as Parker has already been given additional time to file proof of service (ECF 25 No. 22) and this action cannot realistically proceed against Schuering until and unless 26 Parker properly serves him. 27 It is therefore ordered that Defendant Ned Schuering is dismissed without 28 prejudice based on Plaintiff’s failure to file proof of service upon him in compliance with 1 || this Court’s order. 2 DATED THIS 8" Day of August 2024. 3 : An 5 MIRANDA M. DU 6 CHIEF UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28