Federal Home Loan Mortgage Corporation v. Gonzalez

Filing 5

FINDINGS and RECOMMENDATIONS recommending to dismissthe action signed by Magistrate Judge Jennifer L. Thurston on 11/15/2011. Objections to F&R due by 12/29/2011. (Leon-Guerrero, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FEDERAL HOME LOAN MORTGAGE
CORPORATION,

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Plaintiff,
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v.
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MARIA L. GONZALEZ,
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Defendant.
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_____________________________________ )

Case No.: 1:11-cv-01369 LJO JLT
FINDINGS AND RECOMMENDATION TO
DISMISS THE ACTION FOR FAILURE TO
PAY FILING FEES PURSUANT TO 28
U.S.C. § 1914(a) AND FAILURE TO OBEY
THE COURT’S ORDER

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On August 17, 2011, defendant Maria Gonzalez (“Defendant”) initiated removal of this

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action from Kern County Superior Court by filing a Notice of Removal. (Doc. 1). Because the

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Court found Defendant failed to demonstrate that she is unable to pay the court costs due to

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poverty, Defendant’s motion to proceed in forma pauperis was denied. (Doc. 3 at 2). Defendant

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was ordered to pay the filing fee within thirty days of service, or by September 22, 2011. Id.

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However, Defendant has failed to pay the requisite filing fee.

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I. Failure to pay the filing Fee

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As a general rule, all parties instituting any civil action, suit or proceeding in a United

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States District Court must pay a filing fee. 28 U.S.C § 1914(a). An action may proceed despite a

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party’s failure to pay only if the party is granted leave to proceed in forma pauperis pursuant to

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28 U.S.C § 1915(a). See Andrews v. Cervantes, 492 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez
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v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). As noted above, Defendant did not prepay the

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filing fee, and the action may not proceed.

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II. Failure to obey the Court’s Order

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The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or

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of a party to comply with . . . any order of the Court may be grounds for the imposition by the

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Court of any and all sanctions . . . within the inherent power of the Court.” LR 110. “District

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courts have inherent power to control their dockets,” and in exercising that power, a court may

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impose sanctions including dismissal of an action. Thompson v. Housing Authority of Los

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Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with prejudice, based

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on a party’s failure to prosecute an action or failure to obey a court order, or failure to comply

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with local rules. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal

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for failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal

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Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order);

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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute

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and to comply with local rules).

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In determining whether to dismiss an action for failure to prosecute, failure to obey a

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court order, or failure to comply with the Local Rules, the court must consider several factors,

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including: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic sanctions.”

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Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at

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831.

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In the case at hand, 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. The risk of prejudice also

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weighs in favor of dismissal, since a presumption of injury arises from the occurrence of

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unreasonable delay in prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524

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(9th Cir. 1976). The policy favoring disposition of cases on their merits is outweighed by the

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factors in favor of dismissal. Finally, the Court’s warning that the matter could not continue
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without the payment of fees satisfies the requirement that the Court consider less drastic

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measures. See Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424.

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III. Findings and Recommendation

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Defendant has failed to file the requisite filing fee pursuant to 28 U.S.C. § 1914(a), and as

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a result, the matter cannot proceed before the Court at this time. Further, Defendant failed to

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obey the Court’s Order dated August 19, 2011 (Doc. 3).

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Accordingly, IT IS HEREBY RECOMMENDED:

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1.

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This action be DISMISSED WITHOUT PREJUDICE for Defendant’s failure to
pay the filing fee and obey the Court’s order; and

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The Clerk of Court be DIRECTED to close this action, because this order terminates
the action in its entirety.

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These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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14 days after being served with these Findings and Recommendations, Defendant may file

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written objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Defendant is advised that failure to file objections within

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the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated: November 15, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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