United States District Court, D. Nevada
January 22, 2015
MARY STEINER, Plaintiff(s),
AAA LIFE INSURANCE COMPANY, Defendant(s)
Mary T. Steiner, Plaintiff, Pro se, Las Vegas, NV.
For AAA Life Insurance Company, Defendant: Nathan Reinmiller, LEAD ATTORNEY, Sabrina G Wibicki, Alverson Taylor Mortensen, et al, Las Vegas, NV.
REPORT AND RECOMMENDATION
NANCY J. KOPPE, United States Magistrate Judge.
Pending before the Court is the order for Plaintiff to show cause why she should not be sanctioned up to and including dismissal of her claims, pursuant to Federal Rule of Civil Procedure, Rule 16(f). Docket No. 19. The order to show cause was issued on January 9, 2015, and the response was due no later than January 16, 2015. See id. No such response was filed. For the reasons discussed more fully below, the undersigned hereby RECOMMENDS that Plaintiff's Complaint be DISMISSED without prejudice.
On November 14, 2014, the Court scheduled a hearing on Plaintiff's counsel's motion to withdraw as attorney of record for December 1, 2014. See Docket No. 11. The order stated in relevant part that: " Plaintiff and Plaintiff's current counsel shall appear at the hearing in person. . . . THERE WILL BE NO EXCEPTIONS TO THESE APPEARANCE REQUIREMENTS. ." Id. (emphasis in original). Pursuant to the Court's order, Plaintiff's counsel served Plaintiff with a copy of that order. See Docket No. 12 (certificate of service by email and mail); but see Docket No. 14 (affidavit that personal service was ineffective because Plaintiff's home was vacant and had a " for rent" sign on it). On December 1, 2014, the Court called the matter for the hearing as scheduled. See Docket No. 15. In violation of the Court's order discussed above, Plaintiff failed to appear at that hearing. See id.
At that time, the Court ordered the docket to be updated with Plaintiff's last known physical and email addresses, and ordered Plaintiff to file either a notice of intent to proceed or a notice of appearance by new counsel no later than January 5, 2015. Id. Plaintiff failed to make either filing.
The Court then issued an order to show cause as to why this case should not be dismissed for Plaintiff's failure to comply with the Court's order. Docket No. 19. The Court warned that the " failure to timely file a response to this order will result in a recommendation of dismissal." Id. The deadline to file a response was January 16, 2015. Id. Plaintiff failed to comply with that order.
As discussed in the previous section, Plaintiff has (1) disobeyed the Court's order that she appear at the hearing scheduled for December 1, 2014 (Docket No. 11); (2) disobeyed the Court's order to file either a notice of retention of new counsel or of her intent to proceed pro se (Docket No. 15); and (3) disobeyed the Court's order to show cause by not responding (Docket No. 19).
The willful failure of Plaintiff to comply with the Court's orders is an abusive litigation practice that has interfered with the Court's ability to hear this case, delayed litigation, disrupted the Court's timely management of its docket, wasted judicial resources, and threatened the integrity of the Court's orders and the orderly administration of justice. Sanctions less drastic than dismissal are unavailable because Plaintiff has wilfully refused to comply with multiple court orders despite the warning that dismissal may result.
Accordingly, IT IS RECOMMENDED that Plaintiff's Complaint be DISMISSED without prejudice.
Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be in writing and filed with the Clerk of the Court within (14) days after service of this Notice. The Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986). This Circuit has also held that (1) failure to file objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).