Nguyen et al v. Saxon Mortgage Servicing, Inc. et al
Filing
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ORDER DISMISSING ACTION signed by Chief Judge Anthony W. Ishii on 8/12/2011. CASE CLOSED. (Sant Agata, S)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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Plaintiffs,
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v.
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SAXON MORTGAGE SERVICING,
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INC.,
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Defendant.
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____________________________________)
THUYDUONG NGUYEN, JASON
PALARCA,
NO. 1:11-CV-00755 AWI SMS
ORDER DISMISSING ACTION
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BACKGROUND
On July 5, 2011, the court dismissed Plaintiffs’ complaint and ordered Plaintiffs to file an
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amended complaint within twenty-one (21) days.
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amended complaint has been filed.
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Over thirty-nine (39) days have passed and no
Plaintiff has also not contacted the court.
LEGAL STANDARD
A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an
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action or failure to obey a court order. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
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1992). In determining whether to dismiss an action for lack of prosecution the court must
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consider several factors “(1) the public’s interest in expeditious resolution of litigation; (2) the
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court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the
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availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on
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their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at
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1260-61); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).
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conditions precedent before the judge can do anything,’ but a ‘way for a district judge to think
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about what to do.’” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d
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1217, 1226 (9th Cir. 2006) (quoting Valley Eng'rs Inc. v. Elec. Eng'g Co., 158 F.3d 1051, 1057
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(9th Cir. 1998)).
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“These factors are ‘not a series of
DISCUSSION
The court finds that dismissal for Plaintiffs’ failure to prosecute is appropriate in this
action. “The public’s interest in expeditious resolution of litigation always favors dismissal.”
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Pagtalunan, 291 F.3d at 642; Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).
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The court cannot manage its docket if it maintains cases in which a plaintiffs fails to litigate their
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case. The court’s limited resources must be spent on cases in which the litigants are actually
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proceeding. Thus, both the public’s interest in expeditiously resolving this litigation and the
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court’s interest in managing the docket weigh in favor of dismissal.
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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in
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and of itself to warrant dismissal.” Pagtalunan, 291 F.3d at 642; Yourish 191 F.3d at 991.
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However, delay inherently increases the risk that witnesses’ memories will fade and evidence
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will become stale. Pagtalunan, 291 F.3d at 642. Defendant has sought to dismiss this action.
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Defendant does not appear to have any remaining interest in litigating this action. As such, any
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risk of prejudice to Defendant is absent.
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As for the availability of lesser sanctions, there is little available to the court which would
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constitute a satisfactory lesser sanction while protecting the court from further unnecessary
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expenditure of its scare resources. The court’s warning “that failure to obey a court order will
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result in dismissal can itself meet the ‘consideration of alternatives’ requirement.” In re PPA,
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460 F.3d at 1229; Estrada v. Speno & Cohen, 244 F.3d 1050, 1057 (9th Cir. 2001). Here,
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Plaintiff has been warned that dismissal for lack of prosecution would result if appropriate
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dismissal documents were not submitted.
The availability of less drastic sanctions has been
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considered, but given that Plaintiff did not comply with the court’s order and did not contact the
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court, the court has no effective sanction but to close the case.
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Finally, because public policy favors disposition on the merits, this factor normally
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weighs against dismissal. Pagtalunan, 291 F.3d at 643. “At the same time, a case that is stalled
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or unreasonably delayed by a party's failure to comply with deadlines and discovery obligations
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cannot move forward toward resolution on the merits. Thus, [the Ninth Circuit has] also
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recognized that this factor ‘lends little support’ to a party whose responsibility it is to move a
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case toward disposition on the merits but whose conduct impedes progress in that direction.”
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In re PPA, 460 F.3d at 1228.
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this one where the Plaintiff has essentially abandoned the case and has been unable or unwilling
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to proceed with the action.
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The court finds this factor has little weight in an action such as
Thus, the court finds that dismissal is appropriate in this action.
ORDER
Accordingly, the court ORDERS that:
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This action is DISMISSED; and
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The Clerk of the Court is DIRECTED to close the case.
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IT IS SO ORDERED.
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Dated:
0m8i78
August 12, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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