Tuita et al v. Wells Fargo Bank NA et al

Filing 13

ORDER DISMISSING CASE, this case is dismissed, without prejudice, for failure to prosecute under Federal Rule of Civil Procedure 41(b) and Defendant's motion to dismiss 9 is granted consistent with Local Rule Civil 7.2(i). Signed by Senior Judge James A Teilborg on 4/22/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Soane Tuita; Tupou Tuita,

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Plaintiffs,
vs.

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Wells Fargo Bank, N.A.; et al.,
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Defendants.
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No. CV 12-1721-PHX-JAT
ORDER

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On February 20, 2013, the Court issued the following order:

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On October 17, 2012, Defendant MTC Financial filed a motion to dismiss
this case. Plaintiffs did not file a response. Instead, on October 24, 2012,
Plaintiff Soane Tuita filed a notice of removal and a notice that she had filed
bankruptcy. It is unclear to the Court what Plaintiff is seeking to remove.
Therefore, th[e] request that the, “District Court Action be removed to this
Court and the District Court Action be placed upon the docket of this Court as
an adversary proceeding” is denied.
Generally, the automatic stay provisions of the bankruptcy code do not
apply to proceedings initiated by the debtor, as is the case here. See
Martin-Trigona v. Champion Federal Savings & Loan, 1988 WL 46596, *2
(N.D. Ill. 1988); In re Hill, 39 B.R. 894, 897 (Bkrtcy. Or., 1984).1
Accordingly, Plaintiffs must respond to the motion to dismiss or the Court will
deem their failure to respond to be consent to the motion being granted.
See Local Rule Civil 7.2(i); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).
Based on the foregoing,
IT IS ORDERED that by March 20, 2013, Plaintiffs shall respond to the
Motion to Dismiss, or the Court will grant the motion for failing to comply
with a Court order and failing to prosecute (see Fed. R. Civ. Pro. 41(b)).

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However, the cause of action is the property of the estate. Turner v. Cooke, 362
F.3d 1219, 1225-26 (9th Cir. 2004); Cusano v. Klien, 264 F.3d 936, 945 (9th Cir. 2001).

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Doc. 12.

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Plaintiffs did not respond to the motion. “Failure to follow a district court’s local

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rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)

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(citing U.S. v. Warren, 601 F.2d 471, 474 (9th Cir. 1979)). “Although we construe pleadings

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liberally in their favor, pro se litigants are bound by the rules of procedure.” Id. at 54 (citing

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King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). “Before dismissing the action, the district

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court is required to weigh several factors: ‘(1) the public’s interest in expeditious resolution

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of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the [party

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seeking dismissal]; (4) the public policy favoring disposition of cases on their merits; and (5)

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the availability of less drastic sanctions.’” Id. at 53 (quoting Henderson v. Duncan, 779 F.2d

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1421, 1423 (9th Cir. 1986)). “The first two of these factors favor the imposition of sanctions

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in most cases, while the fourth cuts against a default or dismissal sanction. Thus the key

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factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d

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652, 656 (9th Cir. 1990).

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Here, the public interest in expeditious resolution and the court’s need to manage its

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docket both favor dismissal. Further, the risk of prejudice to Defendants exists because they

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have expended the resources necessary to move to dismiss and this case is not proceeding.

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Because the Court warned Plaintiffs of this result, and they still failed to respond to the

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motion, the Court cannot craft a lesser sanction than dismissal. Thus, only the public policy

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favoring resolution of cases on the merits weighs against dismissal.

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Given that four factors weigh in favor of dismissal,

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IT IS ORDERED that this case is dismissed, without prejudice, for failure to

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prosecute under Federal Rule of Civil Procedure 41(b) and Defendant’s motion to dismiss

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(Doc. 9) is granted consistent with Local Rule Civil 7.2(i).

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DATED this 22nd day of April, 2013.