Kea v. Division of Parole and Probation
3:22-cv-00115-MMD-CSD
| D. Nev. | Jul 3, 2023Background
- Pro se plaintiff Kupaa Kea filed a complaint on March 3, 2022, naming only C. Congdon and Heather Digesti as defendants.
- Plaintiff failed to submit completed USM-285 forms needed for Marshal service, so summons were returned unexecuted.
- Magistrate Judge Denney ordered Kea to submit USM-285 forms within 30 days and warned that failure to serve could lead to dismissal under Fed. R. Civ. P. 4(m).
- The Court issued a notice of intent to dismiss and later extended service deadlines, again warning of dismissal; Kea did not comply or show he did not receive orders.
- The District Court applied the Ninth Circuit five-factor test for dismissal for failure to comply and considered less drastic alternatives.
- The Court dismissed the action without prejudice on July 3, 2023, directed the Clerk to enter judgment and close the case, and noted Kea may refile a new complaint if he wishes to pursue claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to dismiss for failure to effect service and comply with court orders (Rule 4(m) and court directives) | No timely response or compliance; effectively no defense to the service issue | No opposition filed / no arguments presented | Case dismissed without prejudice for failure to serve and comply with court orders |
| Whether less drastic alternatives were available before dismissal | No showing of need for more time or lack of receipt of orders | N/A | Court found further deadlines would be futile; less drastic alternatives not meaningful, favoring dismissal |
Key Cases Cited
- Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829 (9th Cir. 1986) (courts have inherent power to control docket and impose dismissal sanctions)
- Carey v. King, 856 F.2d 1439 (9th Cir. 1988) (affirming dismissal for failure to comply with local rules and keep court apprised)
- Malone v. U.S. Postal Serv., 833 F.2d 128 (9th Cir. 1987) (dismissal for failure to obey court order)
- In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217 (9th Cir. 2006) (articulating the five-factor test for dismissal for failure to prosecute or comply)
- Yourish v. Cal. Amplifier, 191 F.3d 983 (9th Cir. 1999) (requiring consideration of meaningful alternatives before dismissal)
- Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002) (discussing the five-factor analysis and exhaustion of alternatives)
- Anderson v. Air West, 542 F.2d 522 (9th Cir. 1976) (presumption of prejudice from unreasonable delay in prosecution)