Smith v. Evergreen Treatment Services ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 SEATTLE DIVISION 8 MARK SMITH, an individual 9 Plaintiff, Case 2:18-cv-00701-JLR 10 OW 11 - 2 EVERGREEN TREATMENT SERVICES, 13 Defendant. 14 ORDER GRANTING ON DEFENDANT’S UNOPPOSED 16 MOTION TO DISMISS PLAINTIFF’S COMPLAINT 18 oe Before the court is Defendant Evergreen Treatment Services’ Motion to Dismiss Plaintiff? 19 Complaint. Pro Se Plaintiff, Mark Smith, was served with the Motion via U.S. Mail on ot abou 20 September 13, 2019 (Dkt. #33). The motion is unopposed. The court has reviewed the motion (Dk 9 #32), the Certification and Declaration of Theresa E. Pruett in Support of Defendant’s Motion t 93 Dismiss (Dkt. # 32-1), the court’s August 14, 2019 Minute Entry (Dkt. #31), related submission 24 || of the parties, the relevant portions of the record, and the applicable law. 25 ORDER GRANTING DEFENDANT’S Reed Pruett Walters PLLC 11120 NE 2" Street NE, Suite 200 UNOPPOSED MOTION TO DISMISS Bellevue, WA 9800 4 PLAINTIFF’S COMPLAINT 425-512-3253 Page | of 4 Pursuant to Fed. R. Civ. P. 37(b)--(d), and 41(b), the court may dismiss an action wit 4 || prejudice for plaintiff's unreasonable failure to cooperate during discovery or failure to compl 3, || with a court order. To justify dismissal as a sanction, the court must also make a finding o 4 | “willfulness, bad faith, or fault of the party.” Wyle v. RJ. Reynolds Industries, Inc., 709 F.2d 585 3 | $99 (9th Cir. (1983). In addition to a finding of willfulness, the court must also consider fiv © | additional factors (“Eisen Factors”): (1) the public's interest in expeditious resolution of litigation 7 (2) the court's need to manage its docket, (3) the risk of prejudice to the defendants, (4) the publid - 8 policy favoring the disposition of cases on their merits, and (5) the availability of less drasti 9 10 sanctions. In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994); SW. Marine Inc. v. Danzig, 217 F.3 1128, 1138 (9th Cir. 2000). Dismissal is appropriate when at least four factors favor dismissal o 12 | where at least three factors "strongly" favor dismissal. Hernandez v, City of El Monte, 138 F.3 13 | 393, 399 (9th Cir. 1998). AWnoway has carefully cevitosed 14 Because the motion is unopposed, the court ueeepts-as-tnie the allegations stated in th □ x and Finds Miley wetrouas Aanrissol wh prayadite 1 +i 13 | motion and supported by declaration, For almost a year, Mr. Smith has failed to respond to discove □□□□ 16 and failed to comply with relevant. discovery rules. He has also failed to comply with the Court’ 17 August 14, 2019 Minute Entry (Dkt. #31). Mr. Smith has not answered Defendant’s November 29 18 2019 First Set of Interrogatories and Requests for Production to Plaintiff. Mr. Smith also failed t 19 respond to defense counsel’s numerous requests for a discovery conference via email, U.S. Mail, a1 certified U.S. Mail, and phone. On August 14, 2019, the court ordered Mr. Smith to provid 79 | “complete responses to Defendant's interrogatories and requests for production no later th 23 || Friday, 8/30/19.” (Dkt. #31). The court also warned Mr. Smith that his failure to “timely compl 24 | with this order to produce discovery may result in the court's entry of sanctions against him] 25 ORDER GRANTING DEFENDANT’S Reed Pruett Walters PLLC 1 : 11120 NE 2" Street NE, Suite 200 UNOPPOSED MOTION TO DISMISS Bellovue, WA 98004 PLAINTIFI’S COMPLAINT 425-512-3253 Page 2 of 4 including the dismissal of his case for lack of prosecution or participation.” Za. Mr. Smith has no » | provided the required discovery response. 3 Dismissal with prejudice of Plaintiffs Complaint for failure to prosecute is appropriate in 4 | this matter because: (1) the substantial passage of time from the discovery due date, (2) th 5 | significant prejudice to Defendant, (3) the upcoming discovery deadlines, (4) Mr. Smith’s thre 6 previous extensions on other court deadlines, (5) Mr. Smith’s violation of the Court’s August 14 7 2019 Minute Order, (6) Mr. Smith’s failure to communicate with ETS counsel (ignoring ET ° counsel’s numerous requests to “meet and confer” and (7) Mr. Smith’s failure to pick up ETS counsel’s certified letter from the post office (Dkt. #30). Mr. Smith’s failure to prosecute is therefore, unreasonable and willful. 12 The Eisen factors strongly in favor of dismissal with prejudice. The delay caused by □□□ 13 | Smith’s willful conduct negatively affects the public's. interest in expeditious resolution o 14 litigation and the court’s need to manage the docket. The risk of prejudice is significant a 15 discovery and motion deadlines are looming and defendant is without basic information an 16 documents from Mr. Smith. Less drastic sanctions have been attempted, including a teleconferenc with the Court on August 14, 2019, issuing a warning to Mr. Smith regarding the possibility off □ dismissal, and the August 14, 2019 Minute Entry extending Mr. Smith’s deadline to respond t 59 August 30, 2019. While public policy favors the disposition of actions on their merits, this facto is outweighed by the four other factors supporting dismissal with prejudice. 22 23 24 25 ORDER GRANTING DEFENDANT’S Reed Proett Walters PLLC UNOPPOSED MOTION TO DISMISS 11120 NE 2"'Street NE, Suite 200 PLAINTIFF’S COMPLAINT aos 513-3983 Page 3 of 4 1 Having considered all of the forgoing, the court GRANTS the Defendant’s motion and 2 || dismisses with prejudice the Plaintiff’s Complaint, 3 3t Dated -this UV day of October, 2019, 4 5 6 UNITED STIATES DISTRICT JUDGE 7 ROBERT ROBART 10 Presented by: 11 12 | REED PRUETT WALTERS LARSEN, PLLC 13 | s/ Theresa E. Pruett Theresa E, Pruett WSBA No. 26063 14 ] Attomeys for Defendant Evergreen Treatment Services 15 16 . 18 19 20 21 22 23 24 25 ORDER GRANTING DEFENDANT'S Reed Pruett Walters PLLC 11120 NE 2" Street NE, Suite 200 UNOPPOSED MOTION TO DISMISS Bellevue, WA 9800 4 PLAINTIFF’S COMPLAINT 425-512-3253 Page □ □□ 4