In Re: Mary Margaret Cunningham et al v. J.P. Morgan Chase Bank et al

Filing 18

MINUTES (IN CHAMBERS): ORDER DISMISSING APPEAL by Judge John F. Walter: Appellant has failed to file an opening brief. (SEE ATTACHMENT FOR FURTHER DETAILS). Accordingly, the instant bankruptcy appeal is DISMISSED under Federal Rule of CivilProcedure 41(b) for failure to prosecute. The Clerk shall close the file and terminate any pending matters. (Made JS-6. Case Terminated.) (jp)

JS-6

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

SA CV 14-652-JFW

Title:

In Re: Mary Margaret Cunningham
Reynaldo Marques, et al. -v- JP Morgan Chase Bank, et al.

Date: August 20, 2014

PRESENT:
HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE
Shannon Reilly
Courtroom Deputy

None Present
Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS:
None
PROCEEDINGS (IN CHAMBERS):

ATTORNEYS PRESENT FOR DEFENDANTS:
None

ORDER DISMISSING APPEAL

Appellant filed her bankruptcy appeal on April 24, 2014. The Court established a briefing
schedule whereby Appellant’s opening brief was due on June 26, 2014, which was continued until
August 11, 2014 after Appellant requested an extension of time. Appellant has failed to file an
opening brief.
Federal Rule of Civil Procedure 41(b) authorizes the Court to dismiss an action where
plaintiff has failed to comply with the Federal Rules of Civil Procedure or any order of the court.
Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992). This power derives from the district court's
inherent authority to control its docket. Id. In determining whether to dismiss an action for failure
to prosecute, the district court may consider: (1) the public's interest in expeditious resolution of
litigation; (2) the court's needs to manage its docket; (3) the risk of prejudice to defendants; (4) the
public policy favoring disposition of cases on their merits; and (5) the availability of less drastic
alternatives. Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451 (9th Cir.1994) (citing
Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)); Thompson v. Housing Auth. of City of
Los Angeles, 782 F.2d 829, 831 (9th Cir.1986).
In the instant case, the Court recognizes the preference for resolving matters on the merits.
Nonetheless, the remaining factors weigh in favor of dismissing the appeal. The interests
expressed in the first two factors are directly contravened by Appellant’s failure to file an opening
brief. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.2002) (“It is incumbent upon the Court
to manage its docket without being subject to routine noncompliance of litigants”); Yourish v.
California Amplifier, 191 F.3d 983, 990 (9th Cir.1999) (recognizing court's need to control its own
docket); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992) (non-compliance with a
court's order diverts “valuable time that [the court] could have devoted to other major and serious
criminal and civil cases on its docket”).
Page 1 of 2

Initials of Deputy Clerk sr

The next factor, the risk of prejudice to the opposing party, is related to the strength of the
Appellant’s excuse for the default. See Yourish, 191 F.3d at 991. In this case, Appellant has
offered no “excuse” for her conduct.
Finally, the Court has considered less drastic alternatives to dismissal. In the Notice
Regarding Appeal From Bankruptcy Court filed on April 24, 2014, the parties were warned that “the
failure of either party to comply with the time requirements as stated in this notice and applicable
rules may result in the dismissal of the appeal.” “[A] district court's warning to a party that failure to
obey the court's order will result in dismissal can satisfy the ‘consideration of [less drastic
sanctions]’ requirement.” Ferdik, 963 F.2d at 1262.
Accordingly, the instant bankruptcy appeal is DISMISSED under Federal Rule of Civil
Procedure 41(b) for failure to prosecute. The Clerk shall close the file and terminate any pending
matters.
IT IS SO ORDERED.

Page 2 of 2

Initials of Deputy Clerk sr