Opinion
Case No.: 16-cv-1782-JAH-AGS
07-18-2017
Anthony Nguyen, Plaintiff, v. Audrey Presley, Defendant.
REPORT AND RECOMMENDATION TO DISMISS FIRST AMENDED COMPLAINT WITHOUT PREJUDICE
After being warned his case could be dismissed for failure to prosecute, Anthony Nguyen conceded he was unable to effectively prosecute his case, and requested that the Court, among other possible remedies, "dismiss this case without prejudice[,] allowing Plaintiff to refile when the circumstances permit prosecution." (ECF No. 23, at 2.) Nguyen can request his case's dismissal without a court order so long as it is before an answer or a summary judgment motion is filed. Fed. R. Civ. P. 41(a)(1); Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) ("Even if the defendant has filed a motion to dismiss, the plaintiff may terminate his action voluntarily by filing a notice of dismissal under Rule 41(a)(1)."). As of the date of Nguyen's request, July 5, 2017, he effectively dismissed his case.
Moreover, Nguyen has still not responded to defendant's motion to dismiss, despite several opportunities. Failing to oppose a motion to dismiss is tantamount to consenting to dismissal. See CivLR 7(f)(3)(c); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (holding that a district court may grant an unopposed motion to dismiss when a local rule permits). Granting the unopposed motion to dismiss in this instance serves the public's interest in speedy resolution and the Court's interest in managing its docket (given the number of opportunities Nguyen was provided to respond), prevents prejudice to defendant by foreclosing this suit until Nguyen is prepared to successfully and efficiently prosecute it, and avoids the more drastic sanction of a dismissal without prejudice. See Ghazali, 46 F.3d at 53 (setting out the factors a Court must consider in granting an unopposed motion to dismiss).
Thus, the Court recommends that:
(1) Defendant's unopposed motion to dismiss the first amended complaint (ECF No. 17) be GRANTED, without prejudice;
(2) Plaintiff's request to dismiss the case without prejudice (ECF No. 23) be GRANTED; and
(3) The Clerk be directed to close this case.
Nguyen entitled his amended complaint as a "Second Amended Complaint," although it was his first amendment. (ECF No. 12, at 1.) This Court refers to it here as the "first amended complaint." --------
Upon being served with a copy of this report, the parties have 14 days to file any objections. Upon being served with any objections, the party receiving such objections has 14 days to file any response. See Fed. R. Civ. P. 72(b)(2). Dated: July 18, 2017
/s/_________
Hon. Andrew G. Schopler
United States Magistrate Judge