United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
the Court is a Motion to Dismiss filed by Defendants Wyndham
Vacation Resorts, Inc. (“Wyndham”) and Stephen
Holmes. (ECF No. 40.) Plaintiff Geokeshia Denise Campbell
(“Campbell”) responded to the Motion (ECF No. 43)
and Defendants replied (ECF No. 44.) For the reasons
discussed below, the Motion is granted and the case is
dismissed with prejudice.
proceeding pro se, filed a complaint in the Eighth
Judicial District Court in Clark County on September 23,
2015. Defendants removed on November 6, 2015, based on
diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).
(ECF No. 1 at 2.) The Court dismissed Campbell's
Complaint without prejudice and with leave to amend, based on
both a failure to state a claim and a failure to serve
Defendants properly. (ECF No. 36.) The Court gave Campbell
thirty (30) days to file an amended complaint and comply with
service requirements of Nev. R. Civ. P. 4. (Id.) The
Court cautioned that failure to serve Defendants properly
would result in dismissal of Campbell's claims with
filed an Amended Complaint on October 10, 2016. (ECF No. 38.)
The Amended Complaint contains only minor alterations. As
with her original Complaint, Campbell filed an
acknowledgement of service signed by a person named Kathleen
Estes. (ECF No. 39.) Defendants have provided a declaration
from Julie Kisha, assistant secretary for Wyndham, asserting
that Kathleen Estes is not an agent, employee or officer of
Wyndham or Stephen Holmes. (ECF No. 7-1 ¶ 6.) Defendants
believe Ms. Estes to be a relative of Campbell's. (ECF
No. 40 at 4.)
Campbell is proceeding pro se, and is therefore
afforded a degree of leniency, she must nevertheless comply
with procedural rules. Ghazali v. Moran, 46 F.3d 52,
54 (9th Cir. 1995) (per curiam). The Nevada Rules of Civil
Procedure govern the evaluation of a complaint filed in state
court. Lee v. City of Beaumont, 12 F.3d 933, 936-37
(9th Cir.1993) (noting that “[t]he issue of the
sufficiency of service of process prior to removal is
strictly a state law issue”), overruled on other
grounds by Cal. Dep't Water Res. v. Powerex Corp.,
53 F.3d 1087, 1091 (9th Cir.2008). The relevant rule here is
Nev. R. Civ. P. 4, which requires the summons and complaint
be served together and also requires service on an
out-of-state corporation comply with the provisions in Nev.
R. Civ. P 4(d)(1) and 4(d)(2).
than a year and a half after filing her original Complaint,
and more than eight months after the Court warned that
failure to serve Defendants would result in dismissal with
prejudice, Campbell has still failed to comply with Nev. R.
Civ. P. 4. Campbell has not provided any explanation excusing
her failure to comply with the Nevada's procedural rules.
courts have the inherent power to control their dockets and
“[i]n the exercise of that power, they may impose
sanctions including, where appropriate . . . dismissal”
of a case. Thompson v. Hous. Auth. of City of Los
Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may
dismiss an action, with prejudice, based on a party's
failure to prosecute an action, failure to obey a court
order, or failure to comply with local rules. See Ghazali
v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal
for noncompliance with local rule); Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)
(dismissal for failure to comply with an order requiring
amendment of complaint); Carey v. King, 856 F.2d
1439, 1440-41 (9th Cir. 1988) (dismissal for failure to
comply with local rule requiring pro se plaintiffs
to keep court apprised of address); Malone v. U.S. Postal
Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal
for failure to comply with court order); Henderson v.
Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal
for lack of prosecution and failure to comply with local
determining whether to dismiss an action for lack of
prosecution, failure to obey a court order, or failure to
comply with local rules, the court must consider several
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 defendants; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic
alternatives. Thompson, 782 F.2d at 831;
Henderson, 779 F.2d at 1423-24; Malone, 833
F.2d at 130; Ferdik, 963 F.2d at 1260-61;
Ghazali, 46 F.3d at 53.
the first and second factors weigh in favor of dismissal. The
third factor also weighs in favor of dismissal. Defendants
have been forced to respond to inappropriate filings and
misleading documents from Campbell. (See ECF Nos.
26, 35, 45, 46, 48.) Finally, the Court gave Campbell ample
time to correct the problems with service and the
deficiencies in her Complaint, which renders any
countervailing weight in the last two factors less compelling
in this instance.
these reasons, Defendants' Motion to Dismiss (ECF No. 40)
is granted. The claims in this ...