Omri Meron v. Green Tree Mortgage Company et al

Filing 19

ORDER DISMISSING ACTION by Judge Otis D. Wright, II: the Court DISMISSES the action in its entirety under Rule 41(b). The Clerk of the Court shall close the case.(Made JS-6. Case Terminated.) (lc)

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United States District Court
Central District of California

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Plaintiff,

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Case № 2:15-cv-06075-ODW (MRWx)

OMRI MERON,
v.

ORDER DISMISSING ACTION

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GREEN TREE MORTGAGE CO.;

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GREEN TREE SERVICING, LLC; RBS

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CITIZENS; and DOES 1–100, inclusive,
Defendants.

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I.

INTRODUCTION

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On October 9, 2015, the Court dismissed Plaintiff Omri Meron’s Complaint

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against Defendant Green Tree Servicing LLC without leave to amend. (ECF No. 18.)

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The Court also ordered Plaintiff to show cause, no later than October 23, 2015, why

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Defendants Green Tree Mortgage Co. and RBS Citizens should not be dismissed for

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lack of prosecution. (ECF No. 17.) To date, Plaintiff has not filed a proof of service

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of summons for either defendant, nor have they shown cause as to why service has not

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been effected.

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prosecute and failure to comply with court orders.

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Consequently, the Court DISMISSES the action for failure to
II.

FACTUAL BACKGROUND

The following summarizes the facts that the Court is able to discern from

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Plaintiff’s oft-incoherent Complaint. Plaintiff is the owner of real property located in

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Los Angeles, California. (Compl. ¶ 1.) Defendants Green Tree Mortgage Co., Green

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Tree Servicing LLC, and RBS Citizens are the owners of a junior mortgage on

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Plaintiff’s property. (Id. ¶¶ 5, 6.) At some point, Plaintiff began suffering “economic

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difficulties,” and “reached out” to Defendants to help him “retain the subject home”

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by modifying the loan. (Id. ¶¶ 5, 6, 9.) Defendants rejected Plaintiff’s request. (Id.

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¶ 12.) Defendants then allegedly made harassing calls to Plaintiff and threatened to

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foreclose on his home. (Id. ¶¶ 12–13.) Defendants also allegedly violated a consent

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decree entered against them in another action, although it is unclear how that relates to

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Plaintiff’s claims. (Id. ¶¶ 10–11.) Finally, Plaintiff alleges that Defendants engaged

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in a “shell game,” in which Defendants promised to modify the loan on condition that

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Plaintiff was not in default on that loan. (Id. ¶ 22.)

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On June 30, 2015, Plaintiff filed this action in the Los Angeles Superior Court.

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(ECF No. 1-1.)

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(“Defendant”) removed the action to this Court. (ECF No. 1.) On August 17, 2015,

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Defendant Green Tree Servicing LLC moved to dismiss Plaintiff’s Complaint. (ECF

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No. 10.) On October 9, 2015, the Court granted the motion without leave to amend.

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(ECF No. 18.) The Court also ordered Plaintiff to show cause, no later than October

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23, 2015, why Defendants Green Tree Mortgage Co. and RBS Citizens should not be

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dismissed for lack of prosecution. (ECF No. 17.) To date, Plaintiffs have not filed a

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proof of service of summons for either remaining defendant, nor have they shown

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cause as to why they have not served them with the Complaint.

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On August 11, 2015, Defendant Green Tree Servicing LLC

III.

LEGAL STANDARD

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A district court has authority to sua sponte dismiss an action for failure to

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prosecute or failure to comply with court orders. Fed. R. Civ. P. 41(b); Link v.

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Wabash R.R., 370 U.S. 626, 629–31 (1962); Hells Canyon Pres. Council v. U.S.

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Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). A court must weigh five factors

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when determining whether to dismiss a case under Rule 41(b): (1) the public’s interest

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in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3)

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the risk of prejudice to the defendants; (4) the availability of less drastic alternatives;

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and (5) the public policy favoring disposition of cases on their merits. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992). These factors exist as a framework

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for the Court’s consideration before dismissing a case, but “are not a series of

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conditions precedent before the judge can do anything.” In re Phenylpropanolamine

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(PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).

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IV.

DISCUSSION

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The Court finds that each factor weighs in favor of dismissal. As to the first

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factor, “[t]he public’s interest in expeditious resolution of litigation always favors

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dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). As to the

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second factor, the Court must “manage its docket without being subject to routine

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noncompliance of litigants.” Id. Here, Plaintiff has not served two of the three named

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defendants, and has failed to show cause for not doing so. Such delay and clear

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noncompliance with court orders substantially hinders the Court from discharging its

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duty to bring cases to a speedy conclusion, and thus this weighs in favor of dismissal.

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As to the third factor, “a defendant must establish that plaintiff’s actions

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impaired defendant’s ability to proceed to trial or threatened to interfere with the

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rightful decision of the case.” Id. Here, this case was filed in the Los Angeles

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Superior Court in June 2015, and was removed to this Court in August 2015. (ECF

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Nos. 1, 1-1.) Yet Plaintiff still has not even served the Complaint on two of the three

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named defendants. “Unnecessary delay inherently increases the risk that witnesses’

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memories will fade and evidence will become stale.” Pagtalunan, 291 F.3d at 642.

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Moreover, Plaintiff offers no explanation for the delay, despite being ordered by the

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Court to do so. The remaining Defendants should not have this matter hanging over

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their heads while Plaintiff essentially ignores the case. Thus, this factor also weighs in

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favor of dismissal.

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The fourth factor—availability of less drastic sanctions—also counsels

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dismissal.

Plaintiff submitted an untimely opposition to Defendant Green Tree

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Servicing LLC’s motion to dismiss, which did little more than regurgitate the Rule

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12(b)(6) standard and did not substantively respond any arguments that Defendant

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made. (ECF No. 14.) After granting the motion without leave to amend, the Court

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ordered Plaintiff to show cause for his failure to prosecute this matter as to the

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remaining Defendants. Plaintiff ignored the Order. It is therefore clear to the Court

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that Plaintiff has little interest in prosecuting his case (let alone diligently prosecuting

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the case), and that less drastic alternative sanctions would not inspire Plaintiff to do

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so.

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Finally, “[p]ublic policy favors disposition of cases on the merits. Thus, this

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factor weighs against dismissal.” Pagtalunan, 291 F.3d at 642. However, this factor

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alone will not prevent dismissal where all other factors weigh in favor of dismissal.

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Id.

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V.

CONCLUSION

For the reasons discussed above, the Court DISMISSES the action in its
entirety under Rule 41(b). The Clerk of the Court shall close the case.

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IT IS SO ORDERED.

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November 24, 2015

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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