United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTIONS TO DISMISS
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Karen Hasting,
Barbara Lucken, and Dee Thayer's second Motion to
Dismiss, Dkt. #34, Defendant Marcella Fleming Reed's
second Motion to Dismiss, Dkt. #39, and Defendant Snohomish
County's Motion to Dismiss, Dkt. #40. Plaintiff has
responded to all of these Motions and the Court is fully
informed of the matter. Defendants move to dismiss based in
part on Plaintiff Ron Gibson's failure to obey the
Court's September 1, 2017, Order granting Plaintiff's
Motion to Amend Complaint and stating “Plaintiff must,
within seven (7) days, file the First Amended Complaint
attached as Exhibit B to Dkt. #17 and serve all remaining
Defendants within fourteen (14) days of this Order.”
Dkt. #33 at 5. That Order sets forth certain procedural facts
incorporated by reference here. Defendants argue Plaintiff
failed to file his amended complaint by September 8, 2017,
and failed to serve Defendants by September 15, 2017.
See Dkt. #34 at 2; Dkt. #39 at 2; Dkt. #40 at 1.
Defendants Lucken, Hastings, and Thayer argue that they still
have not been properly served as of the date of filing their
Motion. Dkt. #34 at 2. Defendant Reed likewise argues that
she has not been properly served. Dkt. #39 at 2. Defendant
Snohomish County requests dismissal with prejudice,
alternatively requesting dismissal without prejudice. Dkt.
#40 at 7. Defendants Hasting, Lucken, and Thayer request
dismissal with prejudice, and Defendant Reed requests
dismissal without prejudice. Dkt. #34 at 3; Dkt. #39 at 2.
Responses, Plaintiff's attorney, Rodney Moody, admits it
was his “error” in not filing the First Amended
Complaint as ordered until October 13, 2017. See
Dkts. #42; 44 and #45. Mr. Moody simply forgot to file the
Amended Complaint with the Court. Plaintiff states that
diligent efforts are (or were) underway to serve the
individual Defendants. Id. Plaintiff makes the
argument that, because Defendants were given a copy of the
proposed First Amended Complaint prior to the Court's
Order above, subsequent service of the now-filed First
Amended Complaint was unnecessary. See, e.g., Dkt.
#51 at 2 (“FRCP 15 does not state that an amended
document sought to be approved by the court is prohibited
from being served prior to the court's ruling.”).
Plaintiff argues against dismissal under Rule 41(b) stating
that “[t]here is virtually no prejudice to Snohomish
County.” Dkt. #56 at 3. Plaintiff argues that there
were extenuating circumstances in this case, and that
“[t]his is not a circumstance of neglect and certainly
not a willful refusal to comply with the Court's
order.” Id. at 6.
41(b) states: “If 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. Unless
the dismissal order states otherwise, a dismissal under this
subdivision (b)… acts as an adjudication on the
merits.” When determining whether to dismiss a case for
failure to comply with pretrial court orders, the following
five factors are considered: “(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 (PPA) Prod. Liab. Litig., 460 F.3d
1217, 1226 (9th Cir. 2006). These factors are “not a
series of conditions precedent before the judge can do
anything, ” but a “way for a district judge to
think about what to do.” Id. (quoting
Valley Eng'rs Inc. v. Elec. Eng'g Co., 158
F.3d 1051, 1057 (9th Cir. 1998)).
Court has reviewed the briefing and the remainder of the
record. It appears certain that Plaintiff or his counsel
acted with reckless disregard of the Court's orders.
Plaintiff previously failed to serve Defendants within the
Rule 4(m) time limit, requiring Court intervention.
See Dkt. #33 at 1. Plaintiff provided very little in
terms of good cause for his failure, leading the Court to
believe that Plaintiff or his counsel were merely negligent
in failing to serve. The Court ultimately concluded that
Defendants had “suffered virtually no prejudice”
and granted Plaintiff leave to amend and serve the new
complaint. Id. at 3-5. Plaintiff's subsequent
and undisputed failure to timely file the Amended Complaint,
on the other hand, has delayed this action and caused a
flurry of otherwise unnecessary motions practice. The Court
finds that Plaintiff has also failed to serve the Amended
Complaint as explicitly ordered. Given the nature of the
Court's September 1, 2017, Order and the underlying issue
of failure to serve, it was unreasonable for Plaintiff to
assume that prior service of a proposed amended complaint was
Court also notes that Defendant Snohomish County asserts that
Plaintiff has still not served his initial disclosures,
nearly five months past the court-ordered May 24, 2017,
deadline. Dkt. #40 at 2. Plaintiff does not dispute this,
arguing only that “[t]he reality of the circumstances
is that it was extremely difficult to competently and
properly comply with [the joint status report and initial
disclosure] dates given the late entry into this case [of
counsel] in conjunction with the status of this litigation
and the materials as they existed only 12 days before the
initial report was due.” Dkt. #56 at 4.
has failed to adequately prosecute his case or follow Court
Orders. The Court finds that Plaintiff's actions above
have (1) infringed the public's interest in expeditious
resolution of litigation, (2) crowded the Court's docket,
and (3) prejudiced Defendants' ability to defend this
action. Although public policy favors disposition of cases on
their merits, the merits cannot be addressed when one party
simply fails, without good cause, to follow Court orders and
the Federal Rules of Civil Procedure. The Court has
considered the availability of less drastic sanctions.
However, because of the repeated and substantial nature of
Plaintiff's failures, the Court concludes that
Defendants' Motions should be granted and this case
dismissed without prejudice.
reviewed the relevant briefing and the remainder of the
record, the Court hereby finds and ORDERS that:
Defendants' Motions to Dismiss, Dkts. #34, #39, and #40,
are GRANTED. This case is dismissed without prejudice.
case is CLOSED.
 Plaintiff's Response to the second
Motion to Dismiss filed by Defendants Hasting, Lucken, and
Thayer was filed two days after the deadline set forth in