Von Greenbrier v. Greenbrier, Greenbrier IA, No. 9:2012cv00053 - Document 6 (D. Mont. 2012)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. The Complaint is DISMISSED without prejudice for failure to prosecute. Signed by Judge Dana L. Christensen on 8/23/2012. Mailed to Von Greenbrier. (TAG, )

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Von Greenbrier v. Greenbrier, Greenbrier IA Doc. 6 FILED AUG 2 3 2012 PATRICK E. DUFFY. CLERK By ""oe""PU""T""'Y-::::CL'""E=RK'""'.M""'IS"""S=OU7."L,t..-:- IN THE UNITED STATES DISTRlCT COURT FOR THE DISTRlCT OF MONT ANA MISSOULA DIVISION ERRICHE ANTON VON GREENBRIER, ) ) Plaintiff, ) ) vs. ) ) GREENBRIER, and GREENBRIER lA, ) ) Defendants. ) CV 12-53-M-DLC-JCL ORDER -----------------------) Plaintiff Von Greenbrier filed this action stating vague allegations and expressing a desire to "counter sue" the Defendants, who apparently have a pre existing lawsuit pending against Plaintiff in the State of Virginia. United States Magistrate Judge Jeremiah C. Lynch conducted preliminary screening of the Complaint as required by 28 U.S.C. § 1915(e)(2) and issued an Order dated April 23,2012, in which he noted several defects in the Complaint. Judge Lynch explained that the Complaint as currently pled is subject to dismissal, and ordered -1 Dockets.Justia.com Plaintiff Von Greenbrier to file an amended complaint. Judge Lynch set a deadline of May 23, 2012, for filing of an amended complaint. He warned Von Greenbrier that failure to adhere to the deadline may subject the Complaint to dismissal under Fed. R. Civ. P. 41 (b). Von Greenbrier has not filed an amended complaint, and has filed nothing in this case since he filed his Complaint on April 10,2012. On June 1,2012, Judge Lynch entered Findings and Recommendations in this matter in which he recommends dismissal of the Complaint for failure to prosecute under Fed. R. Civ. P. 41(b). Plaintiff Von Greenbrier did not timely object and so has waived the right to de novo review of the record. 28 U.S.C. § 636(b)(I). This Court will review the Findings and Recommendation for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach.. Inc., 656 F .2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is left with a "definite and fum conviction that a mistake has been committed." United States v. Syrax, 235 F .3d 422,427 (9th Cir. 2000). Judge Lynch weighed the five factors to be considered in deciding whether to dismiss for failure to prosecute, as set out in Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Judge Lynch found that the interest in expeditious resolution of cases, the Court's need to manage its docket, and the availability of less drastic options all favor dismissal, while only the preference for resolution of -2 cases on the merits does not. Judge Lynch found the factor of prejudice to the Defendants to be neutral in this instance. On this basis Judge Lynch recommended that the case be dismissed without prejudice for failure to prosecute. I can find no clear error with Judge Lynch's Findings and Recommendations (Doc. No.5) and therefore adopt them in full. Accordingly, IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for failure to prosecllte under Fed. R. Civ. P. 41 (b). The Clerk of Court is directed to enter a judgment of dismissal. .,,t, DATED this 2~ day of August, 2012. Dana L. Christensen, District United States District Court -3 l11rlcrp

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