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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Maria Orozco Gonzalez, 

Plaintiff, 

v. 

City of Glendale, et al., 

Defendants.

No. CV-17-04593-PHX-DWL

ORDER 

 Pending before the Court is Defendants’ motion to dismiss under Rule 41(b). (Doc. 

17.) As explained below, the motion will be denied. Additionally, the Court will construe 

Plaintiff’s recent filings as a request under Rule 15(a)(2) to file a second amended 

complaint, will grant that request, and will order Doc. 19 to be treated as her second 

amended complaint. 

BACKGROUND

 On December 12, 2017, Plaintiff Maria Orozco Gonzalez filed a pro se complaint. 

(Doc. 1.) The complaint was difficult to follow. For example, although the complaint 

asserted that Plaintiff had suffered “harassment due to my Disabilities and my Gender,” it 

did not specifically identify or assert any causes of action. (Doc. 1 at 1-2.) Similarly, 

although the complaint identified, by name, several different employees of the City of 

Glendale and seemed to be accusing each of them of wrongdoing, the introductory 

paragraph of the complaint identified only a single party as a defendant: “The defendant, 

City of Glendale C/O Nancy Mangone.” (Doc. 1 at 1.) 
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 On December 12, 2017, soon after the complaint was filed, the Court provided 

Plaintiff with a document entitled “Notice to Self-Represented Litigant.” (Doc. 4.) Among 

other things, this document identified various manuals and resources that were available to 

Plaintiff. 

 On April 3, 2018, the City of Glendale and Nancy Mangone (collectively, 

“Defendants”) filed a motion for a more definite statement. (Doc. 11.) This motion argued 

the complaint was “ambiguous as to who is suing, under what theories of liability, why 

Plaintiff sues Nancy Mangone, and if Plaintiff is suing the City of Glendale.” (Doc. 11 at 

2.) 

 On June 29, 2018, the Court issued an order granting the motion for a more definite 

statement. (Doc. 15.) The order concluded that additional clarification was needed 

because (1) “Plaintiff names both the City of Glendale and Nancy Mangone as Defendants, 

but her allegations fail to make clear precisely why the alleged acts in the Complaint give 

rise to liability for either the City or Mangone”; (2) “although the Complaint contains 

allegations about Plaintiff’s husband’s own disabilities, it is unclear whether Plaintiff 

purports to bring suit on behalf of her husband as well” and (3) “Plaintiff fails to allege the 

precise cause of action which would give rise to Defendants’ liability.” (Doc. 15 at 2.) 

Thus, the order required Plaintiff to file an amended complaint and specified that the 

“Amended Complaint shall set out in separately numbered paragraphs the factual basis for 

each claim that Plaintiff alleges and the precise legal theory supporting that claim. The 

Amended Complaint shall also make clear who Plaintiff is suing—and in what capacity—

and how Plaintiff’s allegations give rise to liability for each Defendant named in the 

Amended Complaint.” (Doc. 15 at 3.) 

 On July 19, 2018, Plaintiff filed a first amended complaint (“FAC”). (Doc. 16.) 

The FAC did not comply with the Court’s previous order. Among other things, (1) the 

caption of the FAC suggested Plaintiff was suing more than one defendant but did not 

identify each defendant with precision (“City of Glendale, et al., Defendants”); (2) the FAC 

did not contain separately-numbered paragraphs, which the Court had expressly required 
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in its previous order; and (3) although the FAC broadly alluded to several different statutes 

and types of misconduct (the FMLA, the “American with Disability ACT,” and 

harassment), it did not attempt to funnel these allusions into discrete causes of action. 

 On August 3, 2018, Defendants filed a motion to dismiss under Rule 41(b). (Doc. 

17.) In it, Defendants argued that (1) the FAC remains deficient under Rules 8 and 10—

and, in fact, “is more deficient than her original Complaint”—because it fails to identify 

the parties, damages, and causes of action with any precision; (2) because the FAC was 

submitted after the Court ordered Plaintiff to supply a more definite statement, its 

submission should be deemed a violation of a court order; and (3) under Rule 41(b), the 

Court may dismiss a complaint for failure to comply with court orders. (Doc. 17 at 2-7.) 

 On August 7, 2018, the Court issued an order requiring Plaintiff to “file with the 

Clerk of the Court and serve on opposing counsel a responsive memorandum to [the motion 

to dismiss] no later than August 24, 2018.” (Doc. 18.) 

On August 24, 2018, Plaintiff filed a document entitled “Complaint (Amended) For 

A Civil Case.” (Doc. 19.) On the one hand, this pleading was not a responsive 

memorandum (as required by the Court’s August 7, 2018 order). On the other hand, this 

pleading finally supplied the details that were missing in Plaintiff’s original complaint and 

Plaintiff’s FAC. It identified two defendants with precision (City of Glendale and Carl 

Westbrooks), asserted that “[t]he basis for federal court jurisdiction is Federal question,” 

identified three causes of action with prevision (first, “Violation of the FMLA Act”; 

second, “Violation of the Americans with Disabilities Act of 1990”; and third, “Gender 

Discrimination, Title VII of the Civil Rights Act of 1964”), used numbered paragraphs to 

supply the factual allegations supporting each cause of action, and concluded with a 

detailed claim for relief. (Doc. 19 at 1-9.) 

 On August 24, 2018, Plaintiff also filed a separate document entitled “Answer to 

Order.” (Doc. 20.) The purpose of this document isn’t clear. 

 On August 31, 2018, Defendants filed a reply in support of the motion to dismiss. 

(Doc. 21.) In it, Defendants argued that (1) Plaintiff’s two submissions on August 24 were 
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inadequate because neither constituted a “responsive memorandum” to the motion to 

dismiss; and (2) Plaintiff’s attempt to submit a new complaint also violated Rule 15(a)(2) 

because she didn’t “first seek[] leave of the Court or consent of opposing counsel.” (Doc. 

21 at 2.) 

 On September 13, 2018, Plaintiff submitted a document entitled “Response to Rule 

41 Motion to Dismiss.” (Doc. 22.) This pleading includes the following passage: “I have 

filed an Amended Complaint. I followed the sample provided in the form on the United 

States Federal Court’s website. I listed, in my Statement of Claim, my facts regarding each 

of the counts. As per the information, I followed the instructions and I did not make legal 

arguments.” (Doc. 22 at 2.) 

ANALYSIS 

A. Motion to Dismiss 

Defendants have moved to dismiss under Rule 41(b) of the Federal Rules of Civil 

Procedure. Although the Court shares Defendants’ frustration with Plaintiff’s litigation 

conduct to date, the Court will decline to order dismissal. 

As background, Rule 41(b) allows the Court to dismiss an action for failure “to 

comply with . . . a court order.” Before dismissal on this ground, the Court must weigh 

“(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 

manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 

disposition of cases on their merits; and (5) the availability of less drastic alternatives.” 

Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). 

 The first Rule 41(b) factor—the public’s interest in expeditious resolution of 

litigation—“always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th 

Cir. 1999). 

 As to the second factor, the Ninth Circuit has recognized that district courts have 

inherent power to manage their dockets without being subject to noncompliant litigants. 

Ferdik, 963 F.2d at 1261. Where “dilatory conduct greatly impede[s] resolution of the case 

and prevent[s] the district court from adhering to its trial schedule,” this factor favors 
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dismissal. Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987). Here, although 

Plaintiff has arguably violated the Court’s orders on two different occasions—first, by 

filing a deficient FAC in response to the Court’s June 29, 2018 order; and second, by failing 

to timely file a responsive memorandum to Defendants’ motion to dismiss, as required by 

the Court’s August 7, 2018 order—the Court cannot say these failures have greatly 

impeded the resolution of this case. It is notable that Defendants haven’t challenged, on 

the merits, the sufficiency of the new complaint that Plaintiff attempted to file on August 

24, 2018. Had Plaintiff simply filed this document on July 19, 2018—instead of filing the 

admittedly deficient FAC—this whole matter would have been resolved. The one-month 

delay has not “consumed large amounts of the court’s valuable time that it could have 

devoted to other major and serious criminal and civil cases on its docket.” Ferdik, 963 

F.2d at 1261. Consequently, the second factor does not favor dismissal. 

 The third factor considers prejudice to the defendant. “A defendant suffers 

prejudice if the plaintiff’s actions impair the defendant’s ability to go to trial or threaten to 

interfere with the rightful decision of the case.” Adriana Int’l Corp. v. Thoeren, 913 F.2d 

1406, 1412 & n.4 (9th Cir. 1990). Here, Defendants do not suggest the delay in this action 

will impair their ability to make their case. Furthermore, their main theory of prejudice—

that Plaintiff’s earlier filings deprived them of their “right to know what, if any, 

wrongdoing Plaintiff alleges against each of them and what relief she seeks from them”—

was cured by the August 24 filing. Accordingly, this factor weighs against dismissal. 

 Public policy favors disposition of cases on the merits, so the fourth factor weighs 

against dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 

 The final factor requires the Court to consider the impact of dismissal and whether 

a less drastic alternative is available. Malone, 833 F.2d at 131-32. Here, although Plaintiff 

was warned that failing to comply with court orders could result in dismissal (see Doc. 18), 

it’s possible to chalk up her recent procedural missteps to negligence rather than something 

more extreme. Specifically, it appears she diligently tried to address Defendants’ concerns 

about the inadequacy of the FAC by supplying a new version of the complaint that was far 
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more structured and definitive than the two previous iterations. Admittedly, she didn’t 

follow the correct procedural steps when doing so—she should have filed a memorandum 

that addressed Defendants’ Rule 41(b) arguments on the merits and, separately, sought 

leave or consent under Rule 15(a)(2) before filing the new version of the complaint—but 

such missteps by a pro se litigant do not rise to the level of extreme circumstances. 

Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). (“Dismissal is a harsh penalty 

and is to be imposed only in extreme circumstances.”). 

 In sum, the five-factor analysis does not support dismissal under Rule 41(b). 

B. Motion For Leave To Amend 

 As Defendants correctly point out in their motion, Plaintiff’s effort to file a new 

version of her complaint on August 24, 2018 (see Doc. 19) was procedurally improper. 

Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “a party may amend its 

pleading only with the opposing party’s written consent or the court’s leave.” Id. That 

said, “[t]he court should freely give consent when justice so requires.” Id.

 Here, the Court finds that “justice so requires” it to construe Plaintiff’s recent filings 

as a request under Rule 15(a)(2) to file a second amended complaint, to grant that request, 

and to order Doc. 19 to be treated as Plaintiff’s second amended complaint. Edwards v. 

Occidental Chemical Corp., 892 F.2d 1442, 1445 n.2 (9th Cir. 1990) (plaintiff’s failure to 

call her request a “motion for leave to amend” or to tender a formal amendment did not 

preclude district court from granting leave to amend). 

 Plaintiff is further advised that service of the summons and complaint on defendant 

Carl Westbrooks (who was not named as a defendant in the original complaint or the FAC 

and who, according to the docket, has not been served or made an appearance) must occur 

within 90 days of today’s date. See Fed. R. Civ. P. 4(m). Proof of service must be filed 

with the Clerk of Court, in the form of an affidavit, promptly after service has been made. 

See Fed. R. Civ. P. 4(l). This order serves as an express warning that the Court will dismiss 

this action with respect to defendant Carl Westbrooks, without further notice to Plaintiff, 

if he is not timely served. See Fed. R. Civ. P. 4(m). 
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Accordingly, 

IT IS ORDERED that 

1. Defendants’ motion to dismiss (Doc. 24) is DENIED; and 

2. Plaintiff’s “Complaint (Amended) For A Civil Case” (Doc. 19) is deemed Plaintiff’s 

Second Amended Complaint. 

 Dated this 30th day of November, 2018.