Free Motion to Dismiss Case/Lack of Prosecution - District Court of Arizona - Arizona

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Paul W. Holloway - 002046 HOLLOWAY ODEGARD FORREST KELLY & KASPAREK, P.C. 3101 North Central Avenue, Suite 1200 Phoenix, Arizona 85012 (602) 240-6670 ([email protected]) Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 1. Leon Smith, Plaintiff, v. 2. 3. 4. Jesse Plath (5466), a City of Phoenix Police Officer; Jonathan Howard (6118), a City of Phoenix Police Officer; Russell Frederiksen (5344), a City of Phoenix Police Officer, Defendants. ) ) CV02-2492-PHX-EHC (SLV) ) ) ) ) ) MOTION TO DISMISS FOR ) FAILURE TO PROSECUTE ) ) ) ) ) ) ) ) )

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Defendants, pursuant to Rule 41(b), Federal Rules of Civil Procedure, move the Court to dismiss this matter on account of the plaintiff's failure to prosecute. The plaintiff has not prepared a disclosure statement or taken a single deposition during the three and a half years this case has been pending. He has not propounded any discovery requests in years, failed to appear at a number of hearings, and has caused numerous trial dates to be vacated. Despite the fact that the Court has now held two hearings to consider dismissing this case on account of the plaintiff's failure to prosecute, the plaintiff has not taken any action to have a sixth trial date set in this matter. Instead of moving this case forward, the plaintiff has spent the little time he has dedicated to this case preparing and filing frivolous motions that have caused the defendants to incur attorneys fees unnecessarily. As the plaintiff has abandoned his case, the Court should dismiss it.

Case 2:02-cv-02492-EHC

Document 104

Filed 08/14/2006

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I.

FACTS On April 6, 2002, the plaintiff was pulled over by police while driving a stolen

vehicle. At that time, the plaintiff had an outstanding arrest warrant for a probation violation. After being pulled over, the plaintiff fled the scene. As he ran, the plaintiff made a movement that led a police officer to believe that the plaintiff was armed. While the plaintiff evaded the police, the police learned that the plaintiff had an extensive criminal history. They learned the plaintiff had been convicted of multiple offenses, including assaulting a police officer, and that the plaintiff had been indicted for armed robbery. After the plaintiff successfully evaded the police for several hours, the police were informed that the plaintiff was seen entering a garage at a private residence. When the defendants, all of whom are police officers with the City of Phoenix, arrived at the scene, they announced their presence and ordered the plaintiff to show himself. When the plaintiff refused, the defendants warned the plaintiff that they would send in a police dog if the plaintiff did not emerge from his hiding place. The plaintiff continued to ignore the defendants' warnings, and the defendants sent in a police dog. The dog found the plaintiff hiding in a closet and brought the plaintiff into the open. The plaintiff was then arrested. II. PROCEDURAL HISTORY On December 9, 2002, the plaintiff filed suit against three City of Phoenix police officers and the police dog, who has been dismissed from this case. (Doc. 1). The plaintiff claims the defendants used excessive force and denied the plaintiff medical treatment. On May 29, 2003, the defendants deposed the plaintiff. A few days later, the plaintiff mailed the defendants his first and only discovery request, which was a request for production of documents. The defendants responded to the plaintiff's request on July 8, 2003. On May 31, 2003, the plaintiff filed his first frivolous motion. (Doc. 13). The plaintiff asked the Court to appoint a paralegal to represent him in this case. The Court refused to sanction the unauthorized practice of law and denied this motion.
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According to the Court's initial scheduling order, all written discovery requests had to be served by June 6, 2003. (Doc. 10). The day before the deadline, the plaintiff requested an extension of time to serve discovery requests. (Doc. 17). The defendants opposed this request by pointing out that this is a relatively simple case and arguing that additional discovery requests were not necessary. (Doc. 20). The Court granted the plaintiff's request and extended the deadline for serving discovery requests by sixty days. (Doc. 21). During the sixty day extension granted by the Court, the plaintiff did not propound any discovery requests. Instead, he filed a number of frivolous motions. On June 18, 2003, the plaintiff asked the Court to provide him with legal representation free of charge. (Doc. 24). The Court denied this request. (Doc. 29). On June 25, 2003, the plaintiff asked the Court to sanction defendants' attorney because a court reporter mailed a copy of the plaintiff's deposition transcript to a guard. (Doc. 25). This motion was denied. (Doc. 34). Around that same time, the plaintiff filed an undated motion asking the Court to remove defendants' attorney from this case. (Doc. 28). The plaintiff's motion vaguely alleged that the defendants' attorney somehow conspired with prison guards to adversely affect the terms of the plaintiff's confinement. Like his other motions, this motion was denied. (Doc. 34). On February 25, 2004, Magistrate Stephen Verkamp determined that discovery had been completed and recommended that this case be set for trial. (Doc. 38). Trial was set for July 13, 2004. (Doc. 44). In preparation for the trial, the parties submitted their joint

proposed jury instructions, verdict forms and voir dire on March 24, 2004. In April, 2004, the plaintiff moved the Court to continue the trial date. (Doc. 45). He stated that he was scheduled to be released from prison in August, 2004, and a continuance would allow him to prepare for trial while free from confinement. Defendants opposed the continuance. (Doc. 46). The Court granted the plaintiff's motion and continued the trial until October 19, 2004. (Doc. 48). At the pretrial conference, the Court ordered the parties to participate in a settlement conference. The Court vacated the October 19, 2004 trial date. (Doc. 52). The Court subsequently reset the trial for January 11, 2005. (Doc. 53).
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On December 20, 2004, the defendants filed their description of the case. (Doc. 58). The plaintiff did not file a description of his case. Around that time, the Court rescheduled the trial in this matter for March 22, 2005. (Doc. 59). On January 25, 2005, the Court was informed that the plaintiff had secured representation in this matter. As a result, the Court vacated the trial date, set a scheduling conference for April 11, 2005, and directed the parties to develop a proposed discovery plan prior to the conference. (Doc. 62). On March 7, 2005, despite being represented by counsel at the time, the plaintiff personally filed a motion. (Doc. 69). The plaintiff informed the Court that he was back in jail and placed in "lockdown detention." He moved the Court to order the prison to release him from lockdown detention. This request was denied. (Doc. 70). On March 28, 2005, the attorneys in this matter filed a Proposed Case Management Plan. (Doc. 73). Defendants supplied all the information requested by the Court; however, the plaintiff did not provide any substantive information. His attorney explained that he was unable to contact the plaintiff. On April 1, 2005, the scheduling conference was rescheduled to May 9, 2005. (Doc. 74). Because the plaintiff did not supply his portion of the Proposed Case Management Plan by May 9th, the Court was forced to reschedule the scheduling conference once again. (Doc. 75). The Court ordered the plaintiff to provide his portion of the Proposed Case Management Plan by June 11, 2005, and set another scheduling conference for June 27, 2005. (Doc. 76). On June 1, 2005, the plaintiff finally submitted his portion of the Proposed Case Management Plan. (Doc. 79). The plaintiff proposed submitting his initial disclosure statement on July 10, 2005, which is more than two and a half years after he filed this action. As previously mentioned, the plaintiff has not yet provided an initial disclosure statement. At the June 27, 2005 scheduling conference, the Court set a May 23, 2006 trial date. (Doc. 80). ... ...
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On August 8, 2005, the defendants served requests for admission and non-uniform interrogatories on the plaintiff. The plaintiff has not yet responded to these discovery requests. On August 12, 2005, the Court held an ex-parte hearing on the plaintiff's Motion to Change Counsel and Obtain New Counsel. (Doc. 88). The plaintiff did not appear at this hearing. The Court allowed the plaintiff's attorney to withdraw and set a status conference for September 19, 2005. (Doc. 87). The plaintiff did not appear at the September 19, 2005 status conference. Accordingly, the Court set a hearing for October 3, 2005 at which the plaintiff was ordered to appear and show cause, if any, which this action should not be dismissed for failure to prosecute. (Doc. 91). At the October 3, 2005 hearing, the plaintiff appeared and claimed he was seeking new counsel. In order to allow the plaintiff time to secure representation, the Court vacated the trial date and scheduled a status conference for October 24, 2005. (Doc. 93). The plaintiff was an hour late to the October 24, 2005 hearing. Because he did not appear at the scheduled time, the Court scheduled a second hearing to consider dismissing this matter for failure to prosecute for December 12, 2005. (Doc. 97). On December 12, 2005, the Court scheduled a third hearing to consider dismissing this matter for failure to prosecute for February 27, 2006. (Doc. 100). The Court ordered the plaintiff to file a status report by February 13, 2006. Id. The plaintiff has not yet filed a status report. In December, 2005, the plaintiff filed an undated notice of change of address. (Doc. 99). In the notice, he asked the Court to order the defendants to settle this case or to advance the plaintiff sufficient funds to allow the plaintiff to pay his debts. The Court did not grant this request. At the February 27, 2006 hearing, the plaintiff was encouraged to retain counsel and instructed to assemble his records. (Doc. 102). In the nearly five and a half months since the last hearing, the plaintiff has not answered outstanding discovery requests, filed his long
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overdue status report, requested a trial date or taken any other action to move this case forward. It is clear that he has abandoned this case. III. THIS CASE SHOULD BE DISMISSED Rule 41(b), Federal Rules of Civil Procedure, provides in part "For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against a defendant." In its December 22, 2002 Order, the Court warned the plaintiff that it intended to strictly enforce Rule 41(b). Page 3 of the Order provides in part, "Plaintiff should take notice that if he fails to timely comply with . . . any order of the Court entered in this matter, the action and Complaint will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure." (Doc. 3). In order to determine whether to dismiss a case for lack of prosecution, a court should weigh five 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. Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986). A. The public's interest in expeditious resolution. This is a very simple case. The defendants contend that the plaintiff, while a wanted fugitive, refused to emerge from his hiding place necessitating the use of a police dog. In contrast, the plaintiff contends that he had already surrendered to police when the police dog was utilized. The simple factual dispute presented by this case does not require substantial discovery to develop. This case could have and should have been tried before the end of 2003. The repeated delays caused by the plaintiff have subverted the public's interest in expeditiously resolving litigation unnecessarily. B. The Court's need to manage its docket. The plaintiff's failure to diligently prosecute this case has forced the Court to schedule five trial dates, three hearings to consider dismissing this case on account of the plaintiff's failure to prosecute, and seven other pretrial hearings. To make matters worse, the plaintiff
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has filed a large number of frivolous motions which have further taxed the Court's resources. While the defendants are not familiar with the Court's docket, the defendants believe that the Court's docket is too busy to accommodate the burden imposed by plaintiffs who do not actively prosecute their cases. C. The risk of prejudice to the defendants. The defendants have been prejudiced by the plaintiff's delay. The delay has forced the Court to set numerous scheduling and status conferences, and this caused the defendants to incur additional attorney's fees. Also, the events at issue in this lawsuit occurred more than four years ago. Memories are fading, and this will impede the ability of the defendants to present their defense. Because the defendants have deposed the plaintiff, the plaintiff has the benefit of his deposition transcript to refresh his recollection. As the plaintiff has not taken a single deposition, the defendants do not have this luxury. In other words, the plaintiff's neglect of his obligations to the Court has given him a significant advantage. In any case, the fact that the plaintiff has caused unreasonable delay in this case creates a presumption of injury to the defense. Henderson, supra. The plaintiff must affirmatively show the absence of prejudice to the defendants in order to overcome this burden. D. Public policy favoring disposition of cases on their merits. While public policy favors resolving cases on their merits, there is no reason to believe that this case will ever be resolved on the merits even if the Court does not grant this motion. Despite the fact that the Court has scheduled three hearings to consider dismissing this case on account of the plaintiff's failure to prosecute, the plaintiff has not taken any action to move this case forward. E. The availability of less drastic sanctions. The Court has tried to induce the plaintiff to act though less drastic means. It warned the plaintiff that the Court would dismiss this case if the plaintiff did not comply with its orders and has set three hearings to impress upon the plaintiff the importance of diligently prosecuting his case. Nonetheless, the plaintiff has not answered the defendants' outstanding
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discovery requests. The plaintiff has not filed his status report, which is more than five months overdue. He has failed to attend three hearings. Despite obtaining multiple extensions of the discovery deadlines in this matter, the plaintiff has not propounded a single discovery request in the last three years. He has not requested or taken a single deposition, and he is responsible for the fact that this matter has not been tried on any of the five trial dates set by the Court. The plaintiff's track record of inaction during the three and a half years that this case has been pending makes it clear that dismissal is the only appropriate remedy. DATED this 14th day of August, 2006. HOLLOWAY ODEGARD FORREST KELLY & KASPAREK, P.C. By s/Paul W. Holloway Paul W. Holloway 3101 North Central Avenue, Suite 1200 Phoenix, Arizona 85012 Attorneys for Defendants

CERTIFICATE OF SERVICE I certify that on the 14th day of August, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and a courtesy copy of the same with the transmittal of a Notice of Electronic Filing hand-delivered to: Honorable Earl H. Carroll UNITED STATES DISTRICT COURT 401 West Washington Phoenix, Arizona 85003 [email protected] I further certify that on the 14th day of August, 2006, I served the attached document by mail on the following, who is not a registered participant of the CM/ECF System: Leon Smith 28446 North 51st Street Cave Creek, Arizona 85331 Plaintiff Pro Per s/Carlette M. Knauf

Case 2:02-cv-02492-EHC

Document 104

-8Filed 08/14/2006

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