Julia Gerard v. Wells Fargo Bank National Association et al

Filing 17

ORDER by Judge Beverly Reid O'Connell. This case is DISMISSED with prejudice pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED.(Made JS-6. Case Terminated.) (rfi)

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 14-06670 (BRO) (JPRx)

Title

JULIA GERARD V. WELLS FARGO BANK NATIONAL ASSOCIATION ET AL.

Date

January 8, 2015

Present: The Honorable

BEVERLY REID O’CONNELL, United States District Judge

Renee A. Fisher

Not Present

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS)

ORDER DISMISSING CASE PURSUANT TO FEDERAL RULE OF CIVIL
PROCEDURE 41(B)
I.

INTRODUCTION

Plaintiff Julia Gerard (“Plaintiff”) initiated this lawsuit on July 22, 2014 in the
Superior Court of California, County of Los Angeles. (See Compl.) Defendant Wells
Fargo Bank National Association (“Wells Fargo N.A.”) removed the matter to this Court
on August 25, 2014. (Dkt. No. 1.) After removal, on September 2, 2014, Wells Fargo
N.A. and Defendant Wells Fargo Bank, Ltd. (“Wells Fargo Ltd.”) (collectively, “Wells
Fargo Defendants”) moved to dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. (Dkt. No. 9.) Plaintiff failed to oppose the
motion. On September 23, 2014, the Court issued an Order to Show Cause why Wells
Fargo Defendants’ motion to dismiss should not be granted. (Dkt. No. 11.) Plaintiff
failed to respond to the Court’s order or to oppose the motion. Accordingly, the Court
granted Wells Fargo Defendants’ motion to dismiss without prejudice on October 2,
2014. (Dkt. No. 12.) Plaintiff failed to file an amended complaint.
On November 7, 2014, Wells Fargo Defendants moved to dismiss the case with
prejudice pursuant to Federal Rule of Civil Procedure 41(b). (Dkt. No. 13.) Wells Fargo
Defendants sought dismissal based on Plaintiff’s failure to file an amended complaint
after the Court’s October 2, 2014 dismissal order. Plaintiff failed to timely oppose the
motion. Accordingly, the Court issued another order to show cause why the motion
should not be granted. (Dkt. No. 14.) Plaintiff responded to the order on December 1,
2014 and requested an extension of time to file an amended complaint. (Dkt. No. 15.)
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 14-06670 (BRO) (JPRx)

Title

JULIA GERARD V. WELLS FARGO BANK NATIONAL ASSOCIATION ET AL.

Date

January 8, 2015

Plaintiff’s response indicated that she “intend[ed] to file [her] new complaint against
Wells Fargo Defendants no later than Thursday December 8th, 2014 at 11:00 a.m.” (Id. ¶
4.)
On December 2, 2014, the Court granted Plaintiff’s request for leave to amend and
vacated Wells Fargo Defendants’ Rule 41(b) motion as moot. (Dkt. No. 16.) The
Court’s order specifically directed Plaintiff to file an amended complaint by no later than
December 15, 2014. (Id. at 4.) As of this date, Plaintiff has not filed an amended
complaint.
II.

LEGAL STANDARD

“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss
an action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d
1258, 1260 (9th Cir. 1992). This authority derives from the district court’s inherent
power to control its docket. Id. (citing Thompson v. Hous. Auth. of L.A., 782 F.2d 829,
831 (9th Cir. 1986)). In considering whether to dismiss a case pursuant to Rule 41(b) for
failure to comply with a court order, a district court should consider the following five
factors: “(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.” Thompson, 782 F.2d at 831. A district court’s decision to dismiss a case is
reviewed for abuse of discretion, and the court need not make explicit findings to show it
has considered these factors. Ferdik, 963 F.2d at 1260–61.
III.

DISCUSSION

After considering the five Thompson factors, the Court concludes that dismissal
under Rule 41(b) is appropriate at this time. The first two factors—the public’s interest
in expeditious resolution and the Court’s need to manage its docket—strongly favor
dismissal. Since Plaintiff initiated this action in July 2014, Plaintiff has failed to respond
to Wells Fargo Defendants’ motions and this Court’s orders on numerous occasions.
Indeed, the Court granted Wells Fargo Defendants’ first motion to dismiss pursuant to
Rule 12(b)(6) because of Plaintiff’s failure to oppose and failure to respond to the Court’s
order to show cause. (See Dkt. Nos. 11, 12.) Although Plaintiff responded to a later
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 14-06670 (BRO) (JPRx)

Title

JULIA GERARD V. WELLS FARGO BANK NATIONAL ASSOCIATION ET AL.

Date

January 8, 2015

order to show cause concerning Wells Fargo Defendants’ subsequent motion to dismiss
pursuant to Rule 41(b) (see Dkt. No. 15), Plaintiff has yet to file an amended complaint.
This failure is all the more troubling given Plaintiff’s representation that she planned to
file an amended complaint by December 8, 2014, as well as the Court’s clear directive to
do so by no later than December 15, 2014. (See Dkt. Nos. 15, 16.) In light of Plaintiff’s
dilatory conduct throughout the proceedings, the Court concludes that the first two
Thompson factors favor dismissal. See Ferdik, 963 F.2d at 1261 (“It is incumbent upon
us to preserve the district courts’ power to manage their dockets without being subject to
the endless vexatious noncompliance of litigants.”)
The third factor—prejudice to the defendants—also strongly favors dismissal.
“[T]he risk of prejudice to the defendant is related to the plaintiff’s reason for defaulting
in failing to timely amend.” Yourish v. Cal. Amplifier, 191 F.3d 983, 991 (9th Cir. 1999).
In this case, the Court’s order granting Plaintiff leave to amend clearly specified that
Plaintiff’s amended complaint was to be filed by no later than December 15, 2014. (Dkt.
No. 16.) The Court chose this date based upon Plaintiff’s representation that she planned
to file an amended complaint by December 8, 2014. (Dkt. No. 15.) It is now three weeks
past the Court’s deadline, and Plaintiff has yet to file an amended complaint or request a
further extension of time. Plaintiff’s failure to apprise the Court of the reasons why she
could not meet the December 15, 2014 filing deadline suggests Plaintiff may have failed
to comply with the Court’s directive in an effort to further delay the litigation. Delay
tactics are no reason for default. Accordingly, the prejudice to Wells Fargo Defendants
from Plaintiff’s delay favors dismissal. See Yourish, 191 F.3d at 991–92 (finding the
prejudice factor strongly favored dismissal where the plaintiffs had only a “paltry excuse”
for failing to abide by the district court’s order).
The fourth and fifth factors weigh against dismissal. Public policy favors
disposition on the merits and counsels against dismissing this case for Plaintiff’s failure
to file an amended complaint before the Court’s December 15, 2014 deadline. The Court
also recognizes that it could resort to less drastic sanctions. For example, the Court could
issue another order to show cause as to why the case should not be dismissed. But after
considering Plaintiff’s conduct throughout the proceedings, the Court concludes that this
lesser sanction is neither appropriate nor necessary. Plaintiff has been (or should have
been) on notice that her failure to file an amended complaint could result in dismissal
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 14-06670 (BRO) (JPRx)

Title

JULIA GERARD V. WELLS FARGO BANK NATIONAL ASSOCIATION ET AL.

Date

January 8, 2015

since Wells Fargo Defendants filed the Rule 41(b) motion to dismiss on November 7,
2014. Accordingly, the Court concludes that dismissal is the more appropriate remedy.
Because three of the five Thompson factors favor dismissal, the Court
DISMISSES this case with prejudice. See Yourish, 191 F.3d at 992 (upholding the
district court’s dismissal of a case where three factors strongly favored dismissal).
IV.

CONCLUSION

For the foregoing reasons, this case is DISMISSED with prejudice pursuant to
Federal Rule of Civil Procedure 41(b).
:

IT IS SO ORDERED.
Initials of Preparer

rf

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