Federal Home Loan Mortgage Corporation v. Gonzalez

Filing 6

ORDER ADOPTING 5 FINDINGS AND RECOMMENDATIONS IN PART and ORDER REMANDING Action for Failure to Pay Filing Fees Pursuant to 28 U.S.C. 1914(a) and Failure to Obey the Court's Order, signed by District Judge Lawrence J. O'Neill on 11/30/2011. Copy of remand order mailed to Kern County Superior Court. CASE CLOSED. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

FEDERAL HOME LOAN MORTGAGE
CORPORATION,

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

Case No.: 1:11-cv-01369 LJO JLT
ORDER ADOPTING THE FINDINGS AND
RECOMMENDATION IN PART
(Doc. 5)
ORDER REMANDING THE ACTION FOR
FAILURE TO PAY FILING FEES
PURSUANT TO 28 U.S.C. § 1914(a) AND
FAILURE TO OBEY THE COURT’S
ORDER

17
18

Defendant Maria Gonzalez (“Defendant”) seeks removal of this action from Kern County

19

Superior Court. (Doc. 1). Because the Court found Defendant failed to demonstrate that she is

20

unable to pay the court costs due to poverty, Defendant’s motion to proceed in forma pauperis

21

was denied. (Doc. 3 at 2). Defendant was ordered to pay the filing fee within thirty days of

22

service, or by September 22, 2011. Id. However, Defendant failed to pay the requisite filing fee.

23

I. Findings of the Magistrate Judge

24

The Magistrate Judge noted that a party instituting any civil action, suit or proceeding in a

25

United States District Court must pay a filing fee. (Doc. 5 at 1) (citing 28 U.S.C § 1914(a)). As

26

a result, an action may proceed without payment of the filing fee only if the party is granted leave

27

to proceed in forma pauperis pursuant to 28 U.S.C § 1915(a). See Andrews v. Cervantes, 492

28

F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
1

1

Because Defendant did not prepay the filing fee, the Magistrate Judge concluded the action may

2

not proceed. (Doc. 5 at 2).

3

In addition, the Magistrate Judge observed that the Local Rules, corresponding with Fed.

4

R. Civ. P. 11, provide: “Failure of counsel or of a party to comply with . . . any order of the Court

5

may be grounds for the imposition by the Court of any and all sanctions . . . within the inherent

6

power of the Court.” (Doc. 5 at 2) (quoting LR 110). The Court must consider several factors to

7

determine whether to impose sanctions or dismiss an action, including: “(1) the public’s interest

8

in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

9

prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits;

10

and (5) the availability of less drastic sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1424

11

(9th Cir. 1986); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992); Thompson

12

v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). The Magistrate Judge

13

concluded these factors weighed in favor of sanctions. (Doc. 5 at 3).

14

III. Conclusion and Order

15

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley

16

United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo

17

review of the case. Having carefully reviewed the entire file, the Court finds that the findings

18

and recommendation are supported by the record and by proper analysis, and the matter cannot

19

continue without payment of the filing fee. However because Defendant failed to pay the filing

20

fee, the action will not be dismissed, but rather remanded to the Kern County Superior Court.

21
22

Accordingly, IT IS HEREBY ORDERED that the Findings and Recommendations filed
November 15, 2011, are ADOPTED IN PART as follows:

23

1.

The matter is REMANDED to the Kern County Superior Court; and

24

2.

The Clerk of Court IS DIRECTED to take necessary action to remand this action to

25

the Kern County Superior Court and to close this action.

26
27

IT IS SO ORDERED.

28

Dated:

November 30, 2011

/s/ Lawrence J. O'Neill
2

1

66h44d

UNITED STATES DISTRICT JUDGE

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3