Opinion
6:22-cv-01302-MK
02-08-2023
DAVID L. COOKE, Plaintiff, v. SHERIFF DEPUTY YATES, Defendant.
FINDINGS AND RECOMMENDATION
KASUBHAI, UNITED STATES MAGISTRATE JUDGE:
Pro se Plaintiff David L. Cooke filed this lawsuit in March 2022 in the District of Massachusetts. See Compl., ECF No. 1. The case was transferred to the United States District Court for the District of Oregon in August 2022. August 30, 2022 Order, ECF No. 37. Upon transfer, several motions remained outstanding: a motion to facilitate process and expedite service (ECF No. 2); a motion to make a docket correction and proceed for cause (ECF No. 12); and a motion to strike and for leave to proceed in forma pauperis (“IFP”) (ECF No. 18).Plaintiff subsequently filed an additional application for leave to proceed IFP (ECF No. 51) and a motion to expedite or accelerate (ECF No. 52). In an order dated December 27, 2022, this Court denied all of Plaintiff's pending motions. ECF No. 54.
Two other motions were ripe upon transfer that have subsequently been resolved: a motion to update email address (ECF No. 24) and motion to receive filings by mail and to receive electronic filings via email (ECF No. 33). This Court construed the motions as an application for CM/ECF registration as a self-represented party and granted in part and denied in part for reasons not relevant to this Findings and Recommendation. September 19, 2022 Minute Order, ECF No. 43.
In the December 2022 order, the Court explicitly instructed Plaintiff to submit any proposed summons and notified Plaintiff of resources available to Pro se parties:
Plaintiff is instructed to submit proposed summons by January 31, 2023. After Plaintiff has submitted his proposed summons, the Clerk will issue summons to Plaintiff. Upon the issuance of summons to Plaintiff by the Clerk, Plaintiff will have 30 days to perfect service. Failure to prefect service will result in dismissal of this lawsuit. See Fed.R.Civ.P. 4(m) (outlining the requirements for proper service and explaining that a district court may dismiss for failure to serve after providing notice and absent a showing of good cause for failure to serve); see also Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 512-13 (9th Cir. 2001) (discussing good cause and the district court's broad discretion to dismiss an action). Plaintiff is advised to review the District of Oregon's website, which contains a webpage titled “Information about Representing Yourself in Court,” that is available to the public at https://ord.uscourts.gov/index.php/2015-02-10-16-10-22/information-about-representing-yourself. Additionally, while the Court expresses no endorsement of these resources, Plaintiff may seek assistance through the Federal Bar Association's free Law Clinic program, https://oregonfederalbarassociation.org/federal-law-clinic, or a legal services provider listed on the Oregon Legal Aid Directory, https://oregonlawhelp.org/find-legal-help.
ECF No. 54.
Plaintiff did not submit any proposed summons by January 31, 2023, as instructed by the Court. As of the date of this order, Plaintiff has failed to perfect service. For the reasons that follow, this case should be DISMISSED.
STANDARD OF REVIEW
Federal courts possess the undisputed authority to control their dockets and dismiss a case that a plaintiff fails to prosecute. See Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962). Federal Rule of Civil Procedure 41(b) allows for dismissal of an action for failure to prosecute. A dismissal for failure to prosecute may be ordered by the Court upon motion by an adverse party, or upon the Court's own motion. See Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). “[D]ismissal for failure to prosecute is particularly appropriate when such a failure is coupled with disobedience to court orders or a disregard of established rules.” Gierloff v. Ocwen, No. 6:15-cv-01311-MC, 2017 WL 815118, at *1 (D. Or. Mar. 1, 2017) (citation omitted).
In determining whether to dismiss for failure to prosecute or comply with a court order, the court weighs five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
DISCUSSION
Dismissal is appropriate in this case for at least two reasons. First, Plaintiff's failure to comply with the Court's clear instruction to perfect service is grounds for dismissal. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“the district court may dismiss an action for failure to comply with any order of the court”), as amended (May 22, 1992); see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995); Fed.R.Civ.P. Rule 41(b). Second, as discussed in more detail below, the Pagtalunan five-factor test also strongly favors dismissal.
The public's interest in expeditious resolution of litigation and the Court's need to manage its docket favor dismissal. See Pagtalunan, 291 F.3d at 642 (“It is incumbent upon the Court to manage its docket without being subject to routine noncompliance ....”). Plaintiff filed this lawsuit approximately eleven months ago and was instructed by both the District of Massachusetts Court, where the complaint was initially filed, and this Court to perfect service. Plaintiff disregarded these instructions to perfect service so this lawsuit can progress. The first two factors therefore favor dismissal.
Plaintiff's delay in perfecting service is unreasonable and unnecessary. Id. at 643 (“Unnecessary delay inherently increases the risk that witnesses' memories will fade and evidence will become stale.”). Accordingly, this factor too weighs in favor of dismissal.
With respect to the availability of less drastic alternatives, the Court explicitly warned Plaintiff that failure to perfect service would result in dismissal. See ECF No. 54 (“Failure to prefect service will result in dismissal of this lawsuit.”) (emphasis in original). Plaintiff failed to follow the Court's clear instruction. Accordingly, this factor also weighs in favor of dismissal. See Ferdik, 963 F.2d at 1262 (finding the requirement that court consider less drastic alternatives may be satisfied by warning the litigant that failure to obey court order will result in dismissal).
Finally, “Public policy favors disposition of cases on the merits. Thus, this factor weighs against dismissal,” Pagtalunan, 291 F.3d at 643, but only weakly because Plaintiff's failure to follow the Court's orders has severely impaired disposition on the merits, see United States ex rel. Berglundv. Boeing Co., 835 F.Supp.2d 1020, 1053-54 (D. Or. 2011). Importantly, the fifth factor alone cannot outweigh the other four. In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994).
In sum, although public policy favors disposition on the merits, Plaintiff's repeated refusals to follow the Court's orders to perfect service have obstructed the Court's ability to reach the merits. All other factors weigh in favor of dismissal. Accordingly, the district judge should dismiss this action for failure comply with court orders.
RECOMMENDATION
For the reasons above, because Plaintiff has failed to follow court orders and failed to prosecute this case, the Complaint should be DISMISSED and a judgment should be prepared.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).