United States District Court, D. Nevada
REPORT & RECOMMENDATION
HOFFMAR, JR. UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiff George Dollar's
failure to comply with the court's order (ECF No. 5) and
order to show cause (ECF No. 7).
April 18, 2017, the court entered an order requiring Mr.
Dollar to complete and file summons forms and USM-285 forms
with respect to John Doe LVMPD Officers #1 and #2 by May 22,
2017. (Order (ECF No. 5).) Mr. Dollar did not comply with
that order. On June 15, 2017, the court entered an order
requiring Mr. Dollar to show cause in writing by July 17,
2017, why he failed to comply with the court's previous
order. (OSC (ECF No. 7).) The order to show cause stated that
filing the required summons forms and USM-285 forms would
satisfy the court that sanctions are not warranted and that
no further response to the show cause order would be required
under those circumstances. (Id.) The order to show
cause warned Mr. Dollar that failure to respond would result
in a report and recommendation to the assigned United States
district judge that his case be dismissed. (Id.) Mr.
Dollar has not responded to the order to show cause or filed
the summons forms and USM-285 forms and has not requested an
extension of time to do so.
broad, underlying purpose of the Federal Rules of Civil
Procedure is to "secure the just, speedy, and
inexpensive determination of every action and
proceeding." Fed.R.Civ.P. 1. The rules provide several
mechanisms that allow courts to accomplish this goal through
the use of sanctions against parties that fail to comply with
court orders or that unnecessarily multiply proceedings.
Federal Rule of Civil Procedure 16 is the central pretrial
rule that authorizes courts to manage their cases "so
that disposition is expedited, wasteful pretrial activities
are discouraged, the quality of the trial is improved, and
settlement is facilitated." In re
Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217,
1227 (9th Cir. 2006). Specifically, Rule 16(f) "puts
teeth into these objectives by permitting the judge to make
such orders as are just for a party's failure to obey a
scheduling or pretrial order, including dismissal."
Id. Rulel6(f) provides in relevant part that
"[o]n motion or on its own, the court may issue any just
orders, including those authorized by Rule
37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails
to appear at a scheduling or other pretrial conference ... or
fails to obey a scheduling order or other pretrial
order." Fed.R.Civ.P. 16(f)(1).
sanctions under Rule 37(b)(2)(A) include striking pleadings
and dismissing an action. Fed.R.Civ.P. 37(b)(2)(A)(iii), (v).
"Courts are to weigh five factors in deciding whether to
dismiss a case for failure to comply with a court order: (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." In re
Phenylpropanolamine, 460 F.3d at 1226. It is within the
court's discretion whether to impose dismissal sanctions.
the first two factors, the public's interest in
expeditiously resolving this litigation and the court's
interest in managing its docket, weigh in favor of
terminating sanctions. Mr. Dollar has disengaged from
participation in this demonstrated by his failure to comply
with the court's orders requiring him to file summons and
USM-285 forms and his failure to respond to the court's
order to show cause. Mr. Dollar's repeated failures to
comply with the court's orders are inconsistent with Rule
1 's directive to "secure a just, speedy, and
inexpensive" determination of this action. Mr.
Dollar's failures to comply with the court's orders
also have interfered with the court's management of its
docket, multiplied these proceedings, and have squandered the
third factor and fourth factors, risk of prejudice to the
other parties and the public policy favoring disposition of
cases on their merits, also weigh in favor of terminating
sanctions. Given that Mr. Dollar is responsible for moving
this case forward, his failure to do so has caused delay and
is prejudicial to the defendants, who are entitled to conduct
discovery, proceed to trial, and obtain a rightful decision
in this case. Finally, sanctions less drastic than
terminating sanctions are unavailable because Mr. Dollar has
failed to comply with multiple court orders. Given Mr.
Dollar's failure to comply with past orders, the court
has no reason to believe he would comply with future orders.
Mr. Dollar was warned that failure to comply with the
court's order to show cause would result in a
recommendation that dismissal sanctions be entered against
that these factors all weigh in favor of terminating
sanctions, the court will recommend that Mr. Dollar's
complaint be stricken and that his case be dismissed as a
sanction for his failure to comply with the court's
THEREFORE RECOMMENDED that Plaintiff George Dollar's
Complaint (ECF No. 3) be STRICKEN and that his case be
dismissed with prejudice.
report and recommendation is submitted to the United States
district judge assigned to this case under 28 U.S.C. §
636(b)(1). A party who objects to this report and
recommendation may file a written objection supported by
points and authorities within fourteen days of being served
with this report and recommendation. Local Rule IB 3-2(a).
Failure to file a timely objection may ...