Cordoba v. Bank of America et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that this 1 Action be Dismissed for Failure to Follow a Court Order and for Failure to State a Claim signed by Magistrate Judge Dennis L. Beck on 05/02/2011. Referred to Judge Ishii; Objections to F&R due by 6/6/2011. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARIA AYDA CORDOBA,
) 1:11cv0371 AWI DLB
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) FINDINGS AND RECOMMENDATIONS
) REGARDING DISMISSAL OF ACTION
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Plaintiff,
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v.
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BANK OF AMERICA, et al.,
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Defendants.
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Plaintiff Maria Ayda Cordoba (“Plaintiff”), appearing pro se and proceeding in forma
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pauperis, filed the instant action on March 3, 2011. Plaintiff challenges a pending foreclosure
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and names Bank of America and Recontrust Company as Defendants.
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On March 16, 2011, the Court dismissed the complaint, but granted Plaintiff leave to file
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an amended complaint. The Court provided Plaintiff with the relevant legal standards and
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directed her to file an amended complaint within thirty (30) days. More than thirty (30) days
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have passed and Plaintiff has failed to file an amended complaint.
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For the reasons discussed below, the Court recommends that this action be dismissed for
failure to follow a Court order and failure to state a claim.
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DISCUSSION
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Local Rule 110 provides that “failure of counsel or of a party to comply with these Local
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Rules or with any order of the Court may be grounds for the imposition by the Court of any and
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all sanctions . . . within the inherent power of the Court.” District courts have the inherent power
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to control their dockets and “[i]n the exercise of that power they may impose sanctions including,
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where appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir.
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1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an
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action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v.
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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik
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v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an
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order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.
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1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court
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apprised of address); Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)
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(dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424
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(9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules).
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In determining whether to dismiss an action for lack of prosecution, failure to obey a
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court order, or failure to comply with local rules, the court must consider several factors: (1) the
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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;
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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on
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their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;
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Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali,
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46 F.3d at 53.
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In the instant case, the Court finds that the public’s interest in expeditiously resolving this
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litigation and the Court’s interest in managing the docket weigh in favor of dismissal. This case
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has been pending since early March 2011, and Plaintiff has been given opportunity to correct the
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deficiencies in her complaint. The third factor, risk of prejudice to defendants, also weighs in
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favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable
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delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976).
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The fourth factor -- public policy favoring disposition of cases on their merits -- is greatly
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outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s warning to a
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party that her failure to obey the court’s order will result in dismissal satisfies the “consideration
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of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779
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F.2d at 1424. The Court’s March 16, 2010, order requiring Plaintiff to file an amended
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complaint expressly stated: “If Plaintiff does not file an amended complaint within this time
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frame and in accordance with this order, the Court will recommend that this action be
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dismissed.” Thus, Plaintiff had adequate warning that dismissal would result from her
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noncompliance with the Court’s order and his failure to state a claim.
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RECOMMENDATION
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Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for
failure to follow a court order and for failure to state a claim.
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These Findings and Recommendations will be submitted to the Honorable Anthony W.
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Ishii, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after
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being served with these Findings and Recommendations, Plaintiff may file written objections
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with the Court. The document should be captioned “Objections to Magistrate Judge's Findings
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and Recommendations.” Plaintiff is advised that failure to file objections within the specified
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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
3b142a
May 2, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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