Moreno v. Aukee

Background

The order concerns two related cases brought by Moreno, who was representing himself. In Case No. 19-cv-04206-EMC, Moreno filed suit on July 22, 2019, against Eric Aukee and other defendants. The court dismissed that case and entered judgment on September 20, 2019.

Moreno filed the other lawsuit, Case No. 19-cv-07443-EMC, on November 12, 2019, against Perkins Will, Inc., and other defendants. The cases were related on November 18, 2019. On February 20, 2020, the court dismissed Case No. 19-cv-07443-EMC without prejudice because Moreno had not served the defendants within 90 days after filing the complaint.

Order to Show Cause and Filings

On March 4, 2020, the court ordered Moreno to explain why Case No. 19-cv-07443-EMC should not be dismissed with prejudice for failure to prosecute, meaning failure to move the case forward. The court gave him one week to respond and warned that dismissal with prejudice and entry of judgment would close the electronic filing portal for both cases.

Moreno filed no response in Case No. 19-cv-07443-EMC. He did file several documents in the already-closed Case No. 19-cv-04206-EMC, including motions to continue and compel, a statement about a prior order, and documents described as a stipulation and a response to the order to show cause. The court reviewed those filings but found that they did not address Moreno’s failure to prosecute Case No. 19-cv-07443-EMC. The court also found that the filings did not identify a specific request for relief or another clear purpose. To the extent they sought relief, the court denied those requests.

Service Issue

The court rejected Moreno’s assertion that the defendants in Case No. 19-cv-07443-EMC had been served through the U.S. Marshals. The Clerk’s Office had asked Moreno to provide the defendants’ addresses so the Marshals could serve them, but Moreno did not provide the addresses. The Marshals therefore were not able to serve the defendants. The court concluded that Moreno’s assertion about service was incorrect and did not establish good cause to prevent dismissal.

Failure-to-Prosecute Analysis

The court applied five factors used to decide whether to dismiss for failure to prosecute or failure to follow a court order: the public’s interest in quickly resolving cases, the court’s need to manage its docket, the risk of prejudice to defendants, whether less severe alternatives were available, and the public policy favoring decisions on the merits.

The court found that the first factor favored dismissal because Moreno had not diligently pursued the case for more than four months. The second factor also favored dismissal because the case had used court resources. Although no defendants had been served and no defendant had been required to respond, the court found that Moreno had given no meaningful explanation for delaying service or failing to help the Clerk’s Office complete service. The court also found that it had already used a less severe alternative by first dismissing the case without prejudice and then giving Moreno an opportunity to explain why it should not be dismissed with prejudice.

The court acknowledged that public policy generally favors deciding cases on their merits. But it stated that it was not deciding the case on the merits and that, after reviewing the complaint, it could not identify a viable legal claim or determine whether the court would have jurisdiction if a viable claim existed. The court therefore found that the fifth factor did not weigh against dismissal in this case.

Disposition

The court concluded that all five factors favored dismissal. It dismissed Case No. 19-cv-07443-EMC with prejudice for failure to prosecute, directed the Clerk to enter judgment in that case, and ordered the electronic filing portal for both cases closed. It also denied Moreno’s various requests for relief to the extent the identified filings constituted requests for relief. The order disposed of Docket Nos. 69, 70, 71, 74, 75, and 76 in Case No. 19-cv-04206-EMC.