Charov et al v. Homecomings Financial Company et al

Filing 8

ORDER that Plaintiffs' Complaint is hereby dismissed without prejudice. The Clerk is kindly directed to terminate this case. ORDER that Defendants' Motion to Dismiss Case with Prejudice is DENIED as moot. Signed by Judge Stephen M McNamee on 3/30/11.(TLJ)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiffs, ) ) vs. ) ) Homecomings Financial Company; GMAC Mortgage; Mortgage Electronic ) ) Registration Systems Incorporated, ) ) Defendants. ) Ilia Charov; David Wynn Miller,

No. CV-11-0385-PHX-LOA ORDER

Pro se Plaintiffs commenced this lawsuit on February 28, 2011. (Doc. 1) 16 That same day, the case was randomly assigned to Magistrate Judge Lawrence O. 17 Anderson. (Doc. 2) On March 2, 2011, Judge Anderson issued a Notice of Assignment 18 and Order, directing Plaintiffs to submit on or before March 11, 2011: (1) their written 19 elections to either voluntarily consent to magistrate-judge jurisdiction pursuant to 28 20 U.S.C. § 636(c)(1) or elect to proceed before a United States district judge, and file (2) a 21 First Amended Complaint in compliance with Rule 8(a), Fed.R.Civ.P., and LRCiv.7.1. 22 As explained in detail in Judge Anderson's March 2, 2011 order, the First 23 Amended Complaint must contain a short and plain statement of Plaintiffs' factual and 24 legal allegations that establish a "plausible claim" against each Defendant, consistent with 25 Twombly and Iqbal; specify the District Court's jurisdictional basis; and clarify their 26 federal and state statute(s), if any, upon which Plaintiffs are relying to support their 27 claim(s). 28

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"It is well established that `[d]istrict courts have inherent power to control their docket.'" Ready Transportation, Inc., v. AAR Manufacturing, Inc.,627 F.3d 402, 404 (9th Cir. 2010) (quoting Atchison, Topeka & Santa Fe Ry. v. Hercules, Inc., 146 F.3d 1071, 1074 (9th Cir. 1998) (alteration in original) (quoting Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th Cir. 1998)). "This includes the power to strike items from the docket as a sanction for litigation conduct." Id. (citing, among others, Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 586-87, 588 (9th Cir. 2008) (discussing, but declining to rule on, the ability of a district court to strike documents submitted as exhibits to a motion); Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1224-26 (9th Cir. 2005) (upholding a district court's grant of a motion to strike deposition corrections and a declaration as a sanction when a party had violated Fed.R.Civ.P. 30(e)). A district court's inherent power also permits it to dismiss an entire action to rein in abusive conduct. Atchison, 146 F.3d at 1074 (recognizing inherent power to dismiss an action to sanction abusive conduct such as judge-shopping or failure to prosecute). This inherent power, however, "must be exercised with restraint and discretion. A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process." Ready Transp., Inc., 627 F.3d at 404-405 (citing Thompson v. Hous. Auth. of Los Angeles, 782 F.2d 829, 830 (9th Cir. 1986) (per curiam) (requiring a district court to weigh, among other factors, "the availability of less drastic sanctions" before resorting to dismissal as a sanction). In his March 16, 2011 Order to Show Cause, doc. 5, Judge Anderson forewarned Plaintiffs that, pursuant to Rule 41(b), Fed. R. Civ. P., and Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), trial courts have the inherent power to control their dockets and, in the exercise of that power, may impose sanctions including, where appropriate, dismissal of a case with or without prejudice. See also, Flaksa v. Little River Marine Constr. Co., 389 F.2d 885, 887, 887 (5th Cir. 1968) (citing cases); Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991) (district court may "fashion appropriate sanction for conduct" including "outright dismissal."). "The threat of -2-

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sanctions promotes compliance with a court's orders even if the sanctions threatened are never imposed." Green v. Lisa Frank, Inc., 221 Ariz. 138, 152, 211 P.3d 16, 30 (Az.Ct.App. 2009) (concluding the trial court did not abuse its discretion in striking plaintiff's reply, dismissing his cross-claim, and entering judgment in favor of defendant) (collecting federal and state cases of dismissals for failure to comply with court orders). A district court's inherent authority to sanction parties for failing to comply with its orders exists, in part, to prevent "`disobedience [of] the orders of the Judiciary, regardless of whether such disobedience interfered with the conduct of trial.'" Chambers, 501 U.S. at 44 (quoting Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 798 (1987)). "Dismissal of the complaint for failure to comply with the rules [is] within the court's discretion." Sergio Bautista et al. v. Los Angeles County, 216 F.3rd 837, 841 (9th Cir. 2000) (citing Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 188 (2nd Cir. 1943)); Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995) (The public interest "in expeditious resolution of litigation," a court's need to manage docket, risk of prejudice to party seeking sanctions, public policy favoring disposition on the merits, availability of lesser sanctions, bad faith of violating party, relationship between conduct and merits justify sanction); Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (personal responsibility of party, prejudice to other party, history of dilatory conduct, willfulness or bad faith, other sanctions, merits of claim or defense). The Civil Justice Reform Act of 1990 ("CJRA"), 28 U.S.C. § 471 et seq., mandates the early and on-going judicial management of the pretrial process. Under the CJRA mandate, "[f]ederal trial courts are now required, by statute, to implement techniques and strategies designed to dispose of cases in an efficient and inexpensive manner." Schwarzkopf Technologies Corp. v. Ingersoll Cutting Tool Co., 142 F.R.D. 420, 423 (D. Del. 1992). Additionally, federal judges "are subject to the injunction of Rule 1 [Federal Rules of Civil Procedure] that [the Rules] `be construed to secure the just, speedy and inexpensive determination of every action.'" Herbert v. Lando, 441 U.S. 153, -3-

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177, (1979) (emphasis in original). Plaintiffs' failures to timely comply with Judge Anderson's March 2 and 16, 2011 orders are frustrating the speedy and inexpensive resolution of this case. In determining whether to dismiss a case for failure to comply with court orders, district courts weigh five factors: (1) the public interest; (2) the court's need to manage the docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. Ferdik, 963 F.2d at 1260-61. Plaintiffs' failures to comply with court orders are frustrating the Court's responsibilities mandated by Rule 1, FED.R.CIV.P.,and the Civil Justice Reform Act of 1990, 28 U.S.C. § 471 et seq., such as, "setting early, firm trial dates, such that the trial is scheduled to occur to occur within eighteen months after the filing of the complaint. . . ." 28 U.S.C. § 473(a)(2) (emphasis added). Plaintiffs' pro se status does not discharge their obligation to "abide by the rules of the court in which [they] litigate[]." Carter v. Commissioner of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986). After considering the adequacy of lesser sanctions, Plaintiffs have been forewarned that sanctions may be imposed, Plaintiffs' lawsuit in CV-11-0007-PHX-LOA was dismissed for similar failures, and weighing all five Ferdik factors to determine if dismissal is appropriate due to Plaintiffs' failure to comply with prior court orders, the Court, concludes that dismissal of Plaintiffs' Complaint without prejudice is appropriate and just under the circumstances of this case. Pursuant to General Order 11-3 (Dismissal of a Civil Case Assigned to a United States Magistrate Judge Absent Voluntary Consent by the Parties Under 28 U.S.C. § 636(c)(1)), IT IS ORDERED that Plaintiffs' Complaint is hereby dismissed without prejudice. The Clerk is kindly directed to terminate this case. IT IS FURTHER ORDERED that Defendants' Motion to Dismiss Case with Prejudice is DENIED as moot. -4-

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DATED this 30th day of March, 2011.

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