Mary Heet v. The Bank of New York Mellon et al

Filing 9

IN CHAMBERS - COURT ORDER by Judge Percy Anderson. As a result of Plaintiff's failure to file a First Amended Complaint establishing the subject matter jurisdiction of this Court, this action is dismissed without prejudice. See Fed. R. Civ. P. 41(b); see also Yourish, 191 F.3d at 986-88; Ferdik, 963 F.2d at 1260. IT IS SO ORDERED. Case Terminated. Made JS-6. (jloz)

JS-6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-5455 PA (AJWx)

Title

Mary Heet v. Bank of New York Mellon, et al.

Present: The
Honorable

Date

September 29, 2014

PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

Paul Songco

Not Reported

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

IN CHAMBERS - COURT ORDER

Pursuant to this Court’s Order of July 24, 2014, plaintiff Mary Heet (“Plaintiff”) was required to
file a First Amended Complaint adequately alleging a basis for subject matter jurisdiction no later than
August 7, 2014. That Order specifically warned that “failure to file the First Amended Complaint by
that date . . . may result in the dismissal of this action without prejudice.” More than a month later,
Plaintiff has failed to file an amended complaint.
Dismissal is appropriate here because Plaintiff has failed to comply with the Court’s Order and
has done nothing to cure that failure. Federal Rule of Civil Procedure 41(b) provides that a defendant
may move for dismissal of an action for “failure of the plaintiff to prosecute or to comply with these
rules or any order of court.” Although Rule 41(b) provides for dismissal on the motion of the defendant,
the Court can also dismiss an action sua sponte pursuant to Rule 41(b). See Link v. Wabash R.R. Co.,
370 U.S. 626, 629-30, 82 S. Ct. 1386, 1388, 8 L. Ed. 2d 734 (1962); see also Alexander v. Pac. Mar.
Ass’n, 434 F.2d 281, 283-84 (9th Cir. 1970). The permissive language of Rule 41 — that defendant
“may” move for dismissal — does not limit the Court’s ability to dismiss sua sponte if the defendant
makes no motion for dismissal. Link, 370 U.S. at 630, 82 S. Ct. at 1388-89. The Court has the inherent
power to achieve the orderly and expeditious disposition of cases by dismissing actions pursuant to Rule
41(b) with prejudice for failure to prosecute or for failure to comply with a court order. See id. at 62930, 82 S. Ct. at 1388-89 (dismissal for failure to prosecute); Ferdik v. Bonzelet, 963 F.2d 1258, 1260
(9th Cir. 1992) (same); Yourish v. Cal. Amplifier, 191 F.3d 983, 987-88 (9th Cir. 1999) (dismissal for
failure to comply with court order).
In Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986), the Ninth Circuit set forth five factors
for a district court to consider before resorting to the penalty of dismissal: “(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 sanctions.” Id. at 1423. Cases involving sua sponte dismissal merit special focus on
considerations relating to the fifth Henderson factor. Hernandez v. City of El Monte, 138 F.3d 393, 399
(9th Cir. 1998). Dismissal is appropriate “where at least four factors support dismissal, or where at
least three factors ‘strongly’ support dismissal.” Id. (internal citations omitted) (citing Ferdik, 963 F.2d
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 2

JS-6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-5455 PA (AJWx)

Date

Title

September 29, 2014

Mary Heet v. Bank of New York Mellon, et al.

at 1263).
Here, in assessing the first Henderson factor, the public’s interest in expeditious resolution of
litigation will always favor by a dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)
(citing Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1990)). Relatedly, with respect to the
second factor, the Court’s need to manage its docket will be served by dismissal. See id.
The third Henderson factor at least marginally favors dismissal. The defendants may be further
prejudiced unless the Complaint is dismissed. See Yourish, 191 F.3d at 991; Pagtalunan, 291 F.3d at
642 (holding that failing to timely amend risks prejudice and can justify dismissal).
In considering the fourth and fifth Henderson factors, this Court’s Order of July 24, 2014, as
noted above, explicitly warned Plaintiff that the failure to file a First Amended Complaint could result in
dismissal without prejudice of this action. Despite this warning, Plaintiff failed to file an amended
complaint. Additionally, the Court intends to dismiss this action without prejudice. Accordingly, the
fifth Henderson factor favors dismissal because the Court has adopted the “less-drastic” sanction of
dismissal without prejudice. See McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (noting that
the district court should first consider less drastic alternatives to dismissal with prejudice).
As a result of Plaintiff’s failure to file a First Amended Complaint establishing the subject matter
jurisdiction of this Court, this action is dismissed without prejudice. See Fed. R. Civ. P. 41(b); see also
Yourish, 191 F.3d at 986-88; Ferdik, 963 F.2d at 1260.
IT IS SO ORDERED.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 2