United States District Court, D. Oregon
Michael J. McShane United States District Judge.
following reasons, Defendants' Motion to Dismiss [#31]
and Defendants' Motion for Summary Judgment [#38] are
both GRANTED. This action is DISMISSED with prejudice,
pursuant to Rules 41(b), 12(b), and 56(a) of the Federal
Rules of Civil Procedure, and Defendants are awarded $2,
730.00 in sanctions, pursuant to Federal Rule of Civil
action was filed by plaintiff Kenneth Gierloff on 7/14/2015
[#1]. The Complaint was prepared by Plaintiffs attorney,
Dennis Koho. On 8/29/2016, the Defendants filed a Motion to
Dismiss [#31]. The Plaintiff never responded. On 11/3/2016,
the Defendants filed a Motion for Summary Judgment [#38]. The
Plaintiff never responded. On 6/2/2016, Mr. Koho filed a
Motion to Withdraw as Attorney [#26], which was granted on
6/6/2016 [#27]. On 12/23/2016, Mr. Koho filed an unopposed
motion to re-associate as counsel for the Plaintiff [#40].
The motion was granted [#41], and although plaintiffs counsel
mentions recognizing that discovery expired on 8/29/2016, he
did not address the pending Motion to Dismiss [#31] or Motion
for Summary Judgment [#38]. During the interim period
(June-December 2016) when he did not have counsel, the
Plaintiff was mailed notices of deadlines. [#28; #30; #37].
2/13/2017, this Court issued an Order to Show Cause [#41],
requiring the plaintiff to respond in writing by 2/21/2017 as
to why this action should not be dismissed for lack of
prosecution because he had failed to file a response to the
Defendants' Motion to Dismiss or the Defendants'
Motion for Summary Judgment. [#41]. Plaintiff has never
responded to the Order to Show Cause or either of the
courts possess the undisputed authority to control their
dockets and to dismiss cases that plaintiffs fail to
prosecute. See Link v. Wabash R.R. Co., 370 U.S.
626, 630 (1962); See also Ames v. Standard Oil Co.,
108 F.R.D. 299, 301 (D.D.C. 1985). This power is reflected in
Rule 41(b) of the Federal Rules of Civil Procedure, which
allows for the dismissal of actions when the plaintiff fails
to prosecute it. A dismissal for failure to prosecute may be
ordered by the Court upon motion by an adverse party, or upon
the Court's own motion. See Ash v. Cvetkov, 739
F.2d 493, 495 (9th Cir. 1984). See also Hamilton v.
Neptune Orient Lines, Ltd., 811 F.2d 498, 499 (9th Cir.
1987). Courts have found that dismissal for failure to
prosecute is "particularly appropriate when such a
failure is coupled with disobedience to court orders or a
disregard of established rules." Ames v. Standard
Oil Co., 108 F.R.D. 299 at 302 (D.D.C. 1985).
28 U.S.C. § 1915(e)(2)(B)(ii), this court has the
authority to dismiss an action at any time, if it determines
the action fails to state a claim on which relief may be
granted. In federal court, dismissal for failure to state a
claim is proper only if it is clear that no relief could be
granted under any set of facts that could be proved
consistent with the allegations. Cervantes v. City of San
Diego, 5 F.3d 1273, 1274 (9th Cir. 1993) (quoting
Herhon v. King & Spalding, 467 U.S. 69, 73
(1984)); Tanner v. Heise, 879 F.2d 572, 576 (9th
Cir. 1989). The court may not supply essential elements that
are not pleaded. Ivey v. Board of Regents, 673 F.2d
266 (9th Cir. 1982). A pro se litigant will be given
leave to amend her or her complaint unless it is absolutely
clear that the deficiencies of the complaint cannot be cured
by amendment. Karim-Panahi, 839 F.2d at 623;
Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir.
order to state a claim against a named defendant, a plaintiff
must allege specific facts about that defendant and identify
how that defendant's conduct violated her rights. General
allegations are insufficient. The absence of any factual
allegations against a named defendant will entitle that
defendant to have the complaint dismissed as to him, pursuant
to Fed.R.Civ.P. 12(b). Polk v. Montgomery County,
548 F.Supp. 613, 614 (D.Md. 1982). See also, Morabito v.
Blum, 528 F.Supp. 252, 262 (S.D. N.Y. 1981).
court must grant summary judgment if there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue of
fact is genuine "if the evidence is such that a
reasonably jury could return a verdict for the nonmoving
party." Villiarimo v. Aloha Island Air., Inc.,
281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The
court views the evidence in the light most favorable to the
non-moving party. Allen v. City of Los Angeles, 66
F.3d 1052, 1056 (9th Cir. 1995) (citing Jesinger v.
Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th
Cir. 1994)). On a motion for summary judgment, "the
moving party bears the initial burden to show the absence of
a material and triable issue of fact; the burden then moves
to the opposing party, who must present significant probative
evidence tending to support its claim or defense."
Richards v. Neilsen Freight Lines, 810 F.2d 898, 902
(9th Cir. 1987). If the moving party shows that there are no
genuine issues of material fact, the nonmoving party must go
beyond the pleadings and designate facts showing an issue for
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986); see Fed. R. Civ. P (56)(c). Where the
non-moving party bears the burden of an issue at trial and
the motion challenges that issue, the non-moving party must
set forth specific facts showing that there is a genuine
issue for trial. Fed.R.Civ.P. 56(e)(2); Crane v.
Allen, No. 3:09-cv-1303-HZ, 2012 WL 602432, at
*2 (D. Or. Feb. 22, 2012).
all inferences should be drawn in favor of the non-moving
party, the mere existence of some alleged factual
dispute will not defeat an otherwise properly supported
motion for summary judgment. Anderson, 477 U.S. at
247-48. Rather, the non-moving party must proffer evidence
that could reasonably affect the outcome of the suit.
Miller v. Glenn Miller Prods., Inc., 454 F.3d 975,
988 (9th Cir. 2006). The substantive law determines whether a
disputed fact is material. Richards, 810 F.2d at
Plaintiff has failed to respond to this Court's Order
[#41] issued on 2/13/2017, which ordered the Plaintiff to
show cause in writing by 2/21/2017, as to why this action
should not be dismissed for failure to prosecute. On this
basis alone, dismissal with prejudice is appropriate under
Rule 41(b) of the Federal Rules of Civil Procedure.
is also appropriate under Rule 12(b) of the Federal Rules of
Civil Procedure. According to Defendants' counsel,
Plaintiff has failed to respond to their discovery requests,
which served on 11/9/2015 and were initially due by
7/27/2016. [#31 at pp.1-2]. Plaintiff also failed to attend
his 8/26/2016 deposition. [Id]. On 8/29/2016, the
Defendants filed a Motion to Dismiss [#31], asking the Court
to issue an Order dismissing Plaintiffs complaint as a
discovery sanction for failing to respond to the discovery
requests and missing the deposition. The Defendants further
moved the court to award Defendants' $3, 230.00 in
monetary sanctions for their fees and costs incurred in
attending Plaintiffs deposition and ...