Ellerbe v. Becca's Restaurant & Sports Lounge ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Sydney Ellerbe dba Wall Street World, Inc., Case No.: 2:24-cv-00555-JAD-DJA 4 Plaintiff 5 v. Order Adopting 6 Report & Recommendation and Becca’s Restaurant & Sports Lounge dba Dismissing and Closing Case 7 Scotty’s Restaurant and Lounge, [ECF No. 8] 8 Defendant 9 Plaintiff Sydney Ellerbe dba Sydney’s Wall Street World, Inc. filed this action for 10 “defamation of character” for various incidents that happened at Becca’s Restaurant & Sports 11 Lounge dba Scotty’s Restaurant & Lounge.1 The complaint was screened and dismissed with 12 leave to amend by August 26, 2024.2 When the plaintiff filed nothing, the court ordered the 13 plaintiff to show cause by October 10, 2024, why this action should not be dismissed for failure 14 to comply with the court’s screening order.3 That deadline passed without response, so the 15 magistrate judge recommends dismissal without prejudice.4 Any objection to that 16 recommendation was due by November 12, 2024, but the plaintiff neither objected nor moved to 17 extend the time to do so. “[N]o review is required of a magistrate judge’s report and 18 recommendation unless objections are filed.”5 19 The law permits a district court to dismiss an action based on a party’s failure to comply 20 with a court order.6 In determining whether to dismiss an action on this ground, the court must 21 22 1 ECF No. 1-1. 23 2 ECF No. 5. 24 3 ECF No. 7. 25 4 ECF No. 8. 26 5 Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003); see also Thomas v. Arn, 474 U.S. 140, 150 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 27 6 See Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply 28 with an order requiring amendment of complaint). 1 consider: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 2 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 3 disposition of cases on their merits; and (5) the availability of less drastic alternatives.7 4 The first two factors, the public’s interest in expeditiously resolving this litigation and the 5 court’s interest in managing its docket, weigh in favor of dismissal of the plaintiff’s claims. The 6 third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a 7 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading 8 ordered by the court or prosecuting an action.8 The fourth factor—the public policy favoring 9 disposition of cases on their merits—is greatly outweighed by the factors favoring dismissal. 10 The fifth factor requires the court to consider whether less drastic alternatives can be used 11 to correct the party’s failure that brought about the court’s need to consider dismissal.9 Courts 12 “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 13 explore possible and meaningful alternatives.”10 Because this action cannot proceed until and 14 unless plaintiff files an amended complaint, the only alternative is to enter a second order setting 15 another deadline. But the reality of repeating an ignored order is that it often only delays the 16 inevitable and squanders finite resources along the way. The circumstances here do not indicate 17 that this case will be an exception: there is no hint that the plaintiff needs additional time nor 18 evidence that the plaintiff did not receive the court’s order. Setting another deadline is not a 19 meaningful alternative given these circumstances. So the fifth factor favors dismissal. 20 21 7 In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 22 8 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 23 9 Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less 24 drastic alternatives before the party has disobeyed a court order does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that “the 25 persuasive force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s order as satisfying this element[,]” i.e., like the 26 “initial granting of leave to amend coupled with the warning of dismissal for failure to 27 comply[,]” have been “eroded” by Yourish). 10 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). 28 1 IT IS THEREFORE ORDERED THAT the Report and Recommendation [ECF No. 8] is 2 || ADOPTED in full, this action is DISMISSED, and the Clerk of Court is directed to CLOSE 3 || THIS CASE. : I ORS Le 5 wank Fudge Tepaifer A. Dorsey 6 November 14, 2024 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28