United States District Court, D. Nevada
before the court is the matter of Poshbaby LLC v. Arizona
Labor Force, Incorporated et al., case number
December 21, 2016, the court ordered the parties to file a
stipulated discovery plan and scheduling order no later than
January 12, 2017. (ECF No. 84). Prior to that order, the last
entry on the docket was a notice of address change entered
July 15, 2016. (ECF No. 83).
prior to these entries, on January 14, 2016, the court
entered a notice of intent to dismiss pursuant to Federal
Rule of Civil Procedure 4(m), stating that plaintiff Bank of
America, N.A. (“BANA”) had not filed proper proof
of service of the amended complaint as to defendants E&F
Cannon, Inc., P-C Plumbing, Inc., and Talon Electric, LLC and
setting the 4(m) dismissal deadline for February 13, 2016.
(ECF No. 73). To date, no proof of service has been filed as
to these defendants. On January 6, 2017, BANA filed a notice
of voluntary dismissal with prejudice of its claims against
Ma'An Nasir and Robert Avery. (ECF No. 85).
January 12, 2017, BANA filed a motion to extend the discovery
plan deadline asserting that BANA and defendant Poshbaby LLC
(Poshbaby”) reached a settlement, which will likely
include dismissal of certain claims asserted by BANA. (ECF
No. 86 at 2). In granting BANA's motion, the court
ordered that the parties file a proposed discovery plan and
scheduling order or notice of settlement by February 13,
2017. (ECF No. 90). To date, no proposed discovery plan,
scheduling order, or notice of settlement has been filed. Nor
have the parties filed any requests for extensions; nor has
BANA filed any notice dismissing certain claims asserted
thereby (ECF No. 86).
than complying with the court's order, Poshbaby instead
filed a stipulation to substitute the real party in interest
and amend the caption on February 13, 2017. (ECF No. 92).
February 22, 2017, the court entered an order to show cause
as to why the instant case should not be dismissed for
failure to prosecute and/or failure to comply with the
court's orders. (ECF No. 95).
March 8, 2017, Poshbaby filed a response to the court's
order to show cause. (ECF No. 96). The response, however,
fails to set forth any cause as to the parties' failure
to prosecute the matter or any explanation justifying their
failure to comply with the court's orders.
Legal Standard & Discussion
well established that the district courts have the inherent
power to control their dockets. Ready Transp., Inc. v.
AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010)
(quoting Atchison, Topeka & Santa Fe Ry. v. Hercules,
Inc., 146 F.3d 1071, 1074 (9th Cir.1998)).
“Indeed, the inherent powers permit a district court to
go as far as to dismiss entire actions to rein in abusive
conduct.” Id. (citing Atchison, Topeka
& Santa Fe Ry., 146 F.3d at 1074 as
“recognizing inherent power to dismiss an action to
sanction abusive conduct such as judge-shopping or failure to
for failure to obey a court order is a harsh penalty and
should be imposed only in extreme circumstances. See
Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir.
1987). In determining whether to dismiss a case for failing
to comply with a court order, courts weigh the following 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 the [opposing
party]; (4) the public policy favoring disposition of cases
on their merits; and (5) the availability of less drastic
sanctions.” In re Phynylpropanolamine Prods. Liab.
Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (internal
citations and quotations omitted).
factors are not a series of conditions precedent before the
judge can do anything, but a way for the district judge to
think about what to do.” Id. (citing
Valley Eng'rs v. Elec. Eng'g Co., 158 F.3d
1051, 1057 (9th Cir. 1998)). Although preferred, it is not
required that the district court make explicit findings to
show that it has considered these factors. Id. A
dismissal sanction will be overturned only if the reviewing
court is left with “a definite and firm conviction that
it was clearly outside the acceptable range of
sanctions.” Id. (internal citations and
(1) Expeditious Resolution & (2) Court's Need to
Manage Its Docket
first factor, “[o]rderly and expeditious resolution of
disputes[, ] is of great importance to the rule of law. By
the same token, delay in reaching the merits, whether by way
of settlement or adjudication, is costly in money, memory,
manageability, and ...