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Robben v. Carson City

United States District Court, D. Nevada

September 30, 2019

TODD ROBBEN, Plaintiff,
v.
CARSON CITY, et al Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the Court is Defendants' Motion to Dismiss Plaintiff's Complaint. ECF No. 63. For the following reasons, the Court grants the motion.

         II. BACKGROUND

         Plaintiff Todd Robben (“Plaintiff”), a pro se individual, first sued Defendants on October 22, 2015. ECF No.1. In his complaint Plaintiff asserted causes of action for failure to supervise under 42 U.S.C. § 1983, malicious prosecution, First Amendment violations, declaratory relief, Fourth Amendment violations, sixth amendment violations, violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) Act pursuant to 18 U.S.C. § 1962, false arrest and imprisonment, intentional infliction of emotional distress, civil conspiracy, defamation, abuse of process, negligent hiring, retention, supervision and training, and Eighth Amendment violations stemming from events that occurred between 2012 and 2014 while Plaintiff was in and out of prison in Carson City, Nevada. Id. Defendants answered on December 15, 2015. ECF No. 14. The Court granted Plaintiff's motion to stay the case on April 19, 2016 for sixty days. ECF No. 41. On April 24, 2016, Plaintiff moved the Court for appointment of counsel. ECF No. 42. The Court denied the motion for appointment of counsel without prejudice on September 30, 2017. ECF No. 57. On December 11, 2018, Defendants filed the instant motion to dismiss Plaintiff's complaint pursuant to Rule 41(b) of the Federal Rules of Procedure. Plaintiff opposed the motion on January 2, 2019. ECF No. 66. He also filed suropposition on January 25, 2019. ECF No. 66. Defendants replied on December 28, 2018. ECF No. 64.

         III. DISCUSSION

         A. Rule 41 Motion

         Rule 41(b) of the Federal Rules of Civil Procedure states that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Fed.R.Civ.P. 41(b). When considering whether to dismiss for failure to prosecute or comply, district courts 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 the disposition of cases on their merits; and (5) the availability of less drastic sanctions.” In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994). The Court discusses each of these factors in turn.

         1. The Public's Interest in Expeditious Resolution of Litigation

         The Ninth Circuit has noted that this factor “always favors dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).

         In this case, Plaintiff filed his complaint on October 2015. The last filing he made prior to Defendants filing their motion was on December 26, 2017, when he filed a notice of change of address. The change of address was to a prison in Tracy, California, where it appears Plaintiff is currently incarcerated. Almost a year, or 350 days, passed between Plaintiff's last filling and the instant motion. The Court finds that this factor favors dismissal.

         2. Court's Need to Manage its Docket

         “The trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest.” Id. Plaintiff's failure to prosecute has allowed this case to languish on the Court's docket for almost a year, and the case began in 2015- four years ago. The Court also finds that this factor weighs in favor of dismissal.

         3. Risk of ...


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