United States District Court, D. Nevada
GLENKIRK D. PETERS, Plaintiff,
MAXWELL & MORGAN, CORP., Defendant.
M. NAVARRO, DISTRICT JUDGE UNITED STATES DISTRICT COURT.
before the Court is the case of Glenkirk D. Peters v.
Maxwell & Morgan, Corp. (2:18-cv-01399-GMN-EJY). On
September 30, 2019, the Court issued an Order dismissing
Plaintiff Glenkirk D. Peters's (“Plaintiff”)
Amended Complaint. (Order, ECF No. 38). In that Order, the
Court granted leave for Plaintiff to file a second amended
complaint on or before October 30, 2019, to correct
deficiencies in his claims. (See id. 8:4-9,
8:15-18). However, Plaintiff has since failed to file a
second amended complaint or request an extension of time to
do so. For the reasons set forth below, the Court will
dismiss Plaintiff's claims with prejudice.
prior Order, the Court ruled, inter alia, that
Plaintiff failed to state a claim upon which relief could be
granted as to Plaintiff's claims under the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692. (See
Id. 7:10-8:4). Despite the Court's granting leave
for Plaintiff to support these claims with additional factual
allegations in order to establish valid causes of action,
Plaintiff has failed to take any action whatsoever in this
Court is at a loss in cases, such as this one, in which a
plaintiff fails to participate in the judicial process and
does not pursue his claims or even request an extension.
However, the Court has an obligation to promote justice by
allocating judicial resources to cases with ongoing disputes
and active parties.
Rule of Civil Procedure 41(b) allows for the dismissal of an
action based on a party's failure to obey an order of the
Court. The Ninth Circuit has specifically held
that this rule may be applied when a plaintiff fails to file
an amended complaint pursuant to a court-ordered deadline.
See, e.g., Ferdik v. Bonzelet, 963 F.2d
1258, 1260 (9th Cir. 1992). “In determining whether to
dismiss a case for failure to comply with a court order the
district court must weigh five factors including: (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.”
Id. at 1260-61; see also Thompson v. Housing
Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th
Cir. 1986); Henderson v. Duncan, 779 F.2d 1421, 1423
(9th Cir. 1986). The Court will consider each of these
factors in turn.
Ninth Circuit has consistently held that “the
public's interest in expeditious resolution of litigation
always favors dismissal.” Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting
Yourish v. California Amplifier, 191 F.3d 983, 990
(9th Cir. 1999). In this case, Plaintiff has not only failed
to file a second amended complaint pursuant to the
Court's explicit deadline, but has also failed to request
an extension or explain his failure to the Court. Therefore,
this factor weighs in favor of dismissal.
The Court's Need to Manage its Docket
delays caused by Plaintiff's failure to amend his claims
have already consumed time and resources that the Court could
have devoted to other cases. The Court's resources are
best allocated to actions with active parties seeking to
resolve their claims under the law. Thus, this factor also
weighs in favor of dismissal.
Risk of Prejudice to Defendant
Ninth Circuit recognizes that the risk of prejudice must be
considered with reference to “the plaintiff's
reason for defaulting.” Pagtalunan, 291 F.3d
at 642. However, in this matter, Plaintiff has not offered
any explanation for his failure to comply with the
prior Order, the Court clearly identified numerous
deficiencies in Plaintiff's claims that it could attempt
to correct in a second amended complaint. Rather than simply
revise his Amended Complaint to correct these deficiencies,
Plaintiff has taken no action in this case whatsoever.
delay inherently increases the risk that witnesses'
memories will fade and evidence will become stale.”
Pagtalunan, 291 F.3d at 643. Considering
Plaintiff's ongoing failure to file a second amended
complaint without offering an explanation, the Court finds
that the ...