Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Anderson v. Colorado Casualty Insurance Co.

United States District Court, District of Nevada

December 23, 2014



Presently before the court is defendants Colorado Casualty Insurance Company’s (“Colorado Casualty”) and Liberty Mutual Group Inc.’s (“Liberty”) motion to dismiss litigation for want of prosecution. (Doc. # 29). Plaintiff Joseph Anderson has filed a response (doc. # 30) and plaintiff filed a reply (doc. # 31).

I. Background

The instant action arises from an automobile accident and an insurance coverage policy. (See doc. # 29). Defendants are plaintiff’s automobile insurance carriers. (See doc. #1-1). Plaintiff alleges that, on or around August 7, 2010, [1] he suffered “severe, debilitating and permanent injuries, including, but not limited to, injuries to the cervical spine and neurological damage.” (Id.).

Plaintiff alleges that he has an uninsured/underinsured motorist coverage policy through defendants Colorado Casualty and Liberty.[2] According to plaintiff, he reported his claim to defendants and their claim handlers denied and/or failed to appropriately handle his insurance claim. (Id.).

Plaintiff filed his complaint on October 11, 2012 in the Eighth Judicial District Court, Clark County, Nevada, alleging three causes of action: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; and (3) breach of the Unfair Claims Practices Act under Nev. Rev. Stat. 686A.310. (Id.). Defendant Colorado Casualty removed this action to federal court on November 16, 2012. (Doc. # 1).

Defendants filed a motion to compel discovery on June 6, 2013. (Doc. # 15). Any response opposing the motion was due by June 23, 2013. See Local Rule 7-2(b); see also doc. # 15 (setting plaintiff’s response in opposition deadline for June 23, 2013). Plaintiff either failed to file a response or opted not to file a response. On June 28, 2013, the court granted defendants’ motion to compel discovery and ordered plaintiff to (1) provide responses to outstanding discovery requests identified in the motion to compel discovery; (2) execute the authorization to disclose health information form; and (3) provide dates of availability for the treatment providers identified in the motion to compel discovery to appear for deposition. (See doc. # 15). The court ordered plaintiff to comply with its order within 14 days. (See id.).

On October 17, 2013, defendants filed a motion for partial summary judgment on plaintiff’s second and third claims for relief. (Doc. # 23). Plaintiff did not file a response in opposition. The court found no genuine issue of material fact and granted defendants’ motion on March 14, 2014. (Doc. # 28). Plaintiff’s only remaining claim is for alleged breach of contract.

II. Legal Standard

Federal Rule of Civil Procedure 41(b) allows for the dismissal of an action based on a party’s failure to prosecute. Fed.R.Civ.P. 41(b). Federal trial courts have the power to dismiss a plaintiff’s action with prejudice because of the plaintiff’s failure to prosecute. Link v. Wabash R. Co., 370 U.S. 626, 629–32 (1962) (affirming dismissal for failure to prosecute based on attorney’s unexcused failure to attend pretrial conference and other delays); see also Fed. R. Civ. P. 41(b). “The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.” Link, 370 U.S. at 630–31. Although dismissal is a harsh penalty, it is appropriate when a plaintiff fails to prosecute with “reasonable diligence, ” even in the absence of a showing of actual prejudice to the defendants due to the failure. Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir.1976).

Policy favors deciding cases on the merits, but it is the responsibility of the moving party to move towards that disposition at a reasonable pace, and to refrain from dilatory and evasive tactics. Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). Moreover, there is no requirement that the court warn the dilatory party that dismissal is possible if the dilatory tactics continue “when dismissal follows a noticed motion under Rule 41(b).” Nealy v. Transportation Maritima Mexicana, S.A., 662 F.2d 1275, 1279–81 (9th Cir. 1980).

A dismissal under Rule 41(b) “must be supported by a showing of unreasonable delay.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). In addition, the district court must weigh the following factors in determining whether a Rule 41(b) dismissal is warranted: (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 the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010).

III. Discussion

Defendants assert that plaintiff has lost desire, interest and/or ability to prosecute this case. (See doc. # 29). As support, defendants point to a number of occurrences, which the court briefly summarizes. Plaintiff did file a response to the instant motion to dismiss. (Doc. # 30). Plaintiff’s response is short, with his argument just barely exceeding one page. (See id.). Plaintiff asserts, however, that he has diligently prosecuted his claims in this case based on his litigation strategy, and at a minimum, has prosecuted his claims with reasonable diligence. (See doc. # 30).

First, defendants point to plaintiff’s minimal and erratic participation in the prosecution process, including a stretch of inactivity exceeding one-year where plaintiff 1) did not file anything with the court, including responses to multiple motions by defendants, and 2) did not initiate any contact with defendants’ counsel regarding the instant matter.[3] (See doc. # 29). For example, on October 17, 2013, defendants filed a motion for partial summary judgment (doc. # 23) seeking summary judgment on two of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.