Samuel Sosa v. Bank of America Home Loan
Filing
14
MINUTE (In Chambers) ORDER DISMISSING ACTION 12 by Judge Michael W. Fitzgerald: Plaintiff failed to respond to the Court's Order. Accordingly, this action is DISMISSED with prejudice. (Made JS-6. Case Terminated.) (jp)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
JS-6
CIVIL MINUTES—GENERAL
Case No. ED CV 17-00327-MWF (KKx)
Date: August 30, 2017
Title:
Samuel Sosa v. Bank of America Home Loan
Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge
Deputy Clerk:
Rita Sanchez
Court Reporter:
Not Reported
Attorneys Present for Plaintiff:
None Present
Attorneys Present for Defendant:
None Present
Proceedings (In Chambers):
ORDER DISMISSING ACTION [12]
On May 1, 2017, Defendant Bank of America Home Loan filed a Motion to
Dismiss Complaint (“Motion to Dismiss” (Docket No. 9)), which Plaintiff did not
oppose. On August 3, 2017, the Court granted the Motion to Dismiss (the
“Dismissal Order”), and further ordered Plaintiff to show cause on or before
August 21, 2017, why the action should not be dismissed for failure to prosecute.
(Docket No. 12). The Court warned Plaintiff that failure to respond to the Court’s
Order would result in dismissal of the action with prejudice. (Id. at 4).
Plaintiff failed to respond to the Court’s Order. Accordingly, this action is
DISMISSED with prejudice.
It is well-established that a district court has authority to dismiss a plaintiff’s
action due to her failure to prosecute and/or to comply with court orders. See Fed.
R. Civ. P. 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 629–30 (1962)
(noting that district court’s authority to dismiss for lack of prosecution is necessary
to prevent undue delays in the disposition of pending cases and avoid congestion in
district court calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)
(stating that district court may dismiss action for failure to comply with any order
of the court).
Before ordering dismissal, the Court must consider 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 Defendant; (4) the public policy
favoring the disposition of cases on their merits; and (5) the availability of less
1
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. ED CV 17-00327-MWF (KKx)
Date: August 30, 2017
Title:
Samuel Sosa v. Bank of America Home Loan
drastic sanctions. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to
prosecute); Ferdik, 963 F.2d at 1260–61 (failure to comply with court orders).
Here, the first two factors — the public’s interest in expeditious resolution of
litigation and the Court’s need to manage its docket — weigh in favor of dismissal.
Plaintiff has not participated in the action since the action was filed in this Court,
on February 22, 2017. (Docket No. 1). Plaintiff’s extended refusal to participate
in the action, even in response to the Court’s Dismissal Order, hinders the orderly
resolution of his claims on their merits.
The third factor — prejudice to the putative Defendants — also weighs in
favor of dismissal. A rebuttable presumption of prejudice arises when there is a
failure to prosecute the action. Eisen, 31 F.3d at 1452–53. That presumption may
be rebutted where a plaintiff proffers an excuse for delay. Plaintiff has failed to
come forward with any excuse or reason for delay.
The fourth factor — public policy in favor of deciding cases on their merits
— weighs against dismissal. It is Plaintiff’s responsibility, however, to move the
action toward resolution at a reasonable pace and to avoid dilatory tactics. See
Morris v. Morgan Stanley Co., 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has
failed to discharge his responsibility. Furthermore, Plaintiff was warned of the
consequences of his actions, and nevertheless chose not to respond. In these
circumstances, the public policy favoring resolution of disputes on the merits does
not outweigh Plaintiff’s failure to prosecute.
The fifth factor — availability of less drastic sanctions — weighs in favor of
dismissal. The Court has attempted to avoid outright dismissal by issuing the order
to show cause in the Dismissal Order. Plaintiff has not complied with the order to
show cause despite the Court’s warning that failure to file the requested response
would result in the action’s dismissal. See also Henderson v. Duncan, 779 F.2d
1421, 1424 (9th Cir. 1986) (“The district court need not exhaust every sanction
short of dismissal before finally dismissing a case, but must explore possible and
meaningful alternatives.”).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. ED CV 17-00327-MWF (KKx)
Date: August 30, 2017
Title:
Samuel Sosa v. Bank of America Home Loan
Taking all of the above factors into account, dismissal for failure to
prosecute and failure to comply with the Dismissal Order is appropriate.
Accordingly, the action is DISMISSED with prejudice.
This Order shall constitute notice of entry of judgment pursuant to Federal
Rule of Civil Procedure 58. Pursuant to Local Rule 58-6, the Court ORDERS the
Clerk to treat this Order, and its entry on the docket, as an entry of judgment.
IT IS SO ORDERED.
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