United States District Court, D. Nevada
before the court is the matter of Abet Justice LLC v.
First America Trustee Servicing Solutions, LLC et al.,
case number 2:14-cv-00908-JCM-GWF.
court has repeatedly ordered the parties to file a proposed
joint pretrial order. (See ECF Nos. 146, 153, 158).
Pursuant to the scheduling order, joint pretrial orders were
originally due by September 28, 2015. (ECF No. 47). The court
has granted countless motions and stipulations to extend the
dispositive motions deadline, which, in turn, have extended
the joint pretrial order deadline. The joint pretrial order
deadline has been extended nearly two years from the original
deadline. Despite these orders and countless extensions
granted, the parties have, again, failed to timely comply.
19, 2017, the court ordered the parties to file a joint
pretrial order by May 26, 2017, or show cause in writing why
the parties were unable to reach an agreement. (ECF No. 153).
Defendant Sunridge Heights (the “HOA”) filed a
response (ECF No. 154), as did defendants Bank of New York
Mellon (“BNYM”) and First America Trustee
Servicing Solutions, LLC (“FATSS”) (ECF No. 155).
In essence, defendants assert that they have been unable to
agree with plaintiff on the specific language in the joint
pretrial order and that they have presented plaintiff with
numerous drafts, all of which were rejected. (ECF Nos. 154,
than filing a response to show cause, pro se
plaintiff Guetatchew Fikrou elected to file an individual
pretrial order, which was falsely titled as a “proposed
joint pretrial order, ” wherein plaintiff attached
defendants' proposed draft with his handwritten edits
thereon. (ECF No. 156).
14, 2017, the court entered an order finding that Local Rule
16-4 adequately addressed the parties' disagreements over
specific language. (ECF No. 158). Thus, the court struck
plaintiff's noncompliant pretrial order and ordered the
parties to meet and confer and file, by June 28, 2017, a
proposed joint pretrial order in accordance with the
applicable local and federal rules-specifically, LR 16-3 and
LR 16-4. (ECF No. 158).
same order, the court cautioned that failure to timely comply
with the filing of a proposed joint pretrial order could
result in sanctions and/or dismissal, citing to Ready
Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th
Cir. 2010), for the proposition that “the inherent
powers permit a district court to go as far as to dismiss
entire actions to rein in abusive conduct.” (ECF No.
date, the parties have not filed a proposed joint pretrial
order as ordered by the court, and the period to do so has
since passed. On June 30, 2017, the HOA filed a response to
the court's June 14th order, setting forth the reasons
for its noncompliance. (ECF No. 159). In particular, the HOA
asserts that despite dozens of proposed drafts and attempts
to meet plaintiff's demands, defendants have been unable
to draft a joint pretrial order that plaintiff would sign.
(ECF No. 159). The HOA further asserts that “[e]ven
after cutting and pasting language that [plaintiff] wanted in
the joint pretrial order and labelling it as disputed by the
parties, [plaintiff] still would not agree to sign the final
draft.” (ECF No. 159 at 3 (capitalizations omitted)).
same date, defendants FATSS, RCS, and BNYM, collectively,
filed a response to the court's June 14th order,
asserting that plaintiff has refused to sign the most recent
working draft of the joint pretrial order and attaching,
inter alia, email correspondences between the
parties. (ECF No. 160).
3, 2017, the court entered an order giving the parties one
last chance to file a proposed joint pretrial order. (ECF No.
161). In that order, the court notified the parties that
plaintiff's failure to cooperate with defendants in
preparing and filing a timely proposed joint pretrial order
would result in dismissal of plaintiff's complaint,
leaving the counterclaims pending. (ECF No. 161 at 4). The
court further ordered plaintiff to show cause in writing why
default should not be entered against him on defendants'
counterclaims for plaintiff's failures to comply with the
court's orders. (ECF No. 161 at 5).
has failed to timely comply with both of the court's
orders. Plaintiff has failed to respond to the court's
order to show cause and has failed to cooperate with
defendants' to file a proposed joint pretrial order.
Rather, plaintiff filed an “opposition” to
defendants' proposed pretrial order, attaching
defendants' draft and plaintiff's handwritten edits
thereto. (ECF No. 162).
asserts that defendants refused to make the proposed changes.
(ECF No. 162). However, the majority of the changes plaintiff
requested were changes to defendants' portions of the
pretrial order. Local Rule 16-4 allows opposing parties to
include separate statements of issues of fact and/or
statements of issues of law. LR 16-4 n.1, n.2. Thus,
defendants were not obligated to revise their separate
statements to plaintiff's satisfaction.
determining whether a Rule 41(b) dismissal is warranted, the
district court must weigh the following 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 sanctions.”
Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir.
in deciding whether to dismiss an action for failure to
comply with the court's order, the district court must
weigh the following 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 sanctions.” Malone v.
U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)
(internal quotation marks and citation omitted).
considering the aforementioned factors, the court finds that
dismissal of plaintiff's complaint without prejudice is
appropriate in light of plaintiff's repeated failures to
comply with the court's orders. The instant action was
filed over three years ago, on June 11, 2014. (ECF No. 1).
Joint pretrial orders were originally due approximately two
years ago, on September 28, 2015. (ECF No. 47). The risk of
prejudice to defendants is high as plaintiff's failure to
comply with the court's ...