Avery v. Davita Diallysis Center
- James Donato
- 3:16-cv-07061
- U.S. District Court · Northern District of California
- 1
In Avery v. Davita Dialysis Center, Judge Donato dismissed the case without prejudice because Avery did not amend his complaint or respond to the court.
Robert Shorty Avery’s case was dismissed without prejudice, and the file was closed. The opinion does not state the identities or positions of the other defendants beyond naming Davita Dialysis Center and others.
What happened
In Avery v. Davita Dialysis Center, the court had previously dismissed Robert Avery’s complaint because it did not state a plausible federal claim, but allowed him to amend it. Avery did not file an amended complaint by the deadline, and nothing happened in the case for more than two years.
The court then ordered Avery to explain why the case should not be dismissed for failing to pursue it. Avery did not respond by the deadline. The court dismissed the case without prejudice under Rule 41(b), which addresses failure to prosecute, and closed the file.
Judge Donato stated that he considered the required factors and found dismissal warranted under the circumstances. The court noted that Avery appeared to have abandoned the case.
The detailed version
- Avery v. Davita Diallysis Center · No. 3:16-cv-07061
- James Donato
- Feb. 18, 2020
Background
In an earlier order, the court dismissed pro se plaintiff Robert Avery’s complaint because it did not state a plausible federal claim. The court allowed Avery to file an amended complaint by October 20, 2017, but he did not do so. Nothing occurred in the case for more than two years.
On January 24, 2020, the court ordered Avery to show cause—meaning to explain—why the case should not be dismissed under Federal Rule of Civil Procedure 41(b) for failure to prosecute. The deadline to respond was February 7, 2020. Avery filed no response.
Ruling
The court stated that Avery appeared to have abandoned the case. Although the court favored deciding cases on their merits, it considered the five factors identified in Malone v. United States Postal Service and found dismissal warranted under the circumstances.
The case was dismissed without prejudice under Rule 41(b), and the file was closed. Judge James Donato issued the order on February 18, 2020.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.