Altmann et al v. PNC Mortgage et al

Filing 14

ORDER To Dismiss Remaining Defendants (Doc. 13 ), signed by District Judge Lawrence J. O'Neill on 1/27/2012. This Court: DISMISSES this action without prejudice against any remaining defendants, including Cal-Western Reconveyance Corporation and The Bowers Group; and DIRECTS the clerk to enter judgment in favor of any remaining defendants, including Cal-Western Reconveyance Corporation and The Bowers Group and to close this action.(Fahrney, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERNIE ALTMANN, et al.,

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CASE NO. CV F 11-1807 LJO MJS

Plaintiffs,

ORDER TO DISMISS REMAINING
DEFENDANTS
(Doc. 13.)

vs.
PNC MORTGAGE, et al.,
Defendants.
/

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BACKGROUND

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This Court’s January 20, 2012 order (“January 20 order”) dismissed with prejudice defendants

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PNC Bank, N.A., and Rushmore Loan Management Services and noted irreparable deficiencies in the

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operative complaint of plaintiffs Ernie Altmann and Creative Builders, Inc. (collectively “plaintiffs”).

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The January 20 order required plaintiffs, no later than January 26, 2012, to file papers to show cause why

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this Court should not dismiss this action against any remaining defendants, including Cal-Western

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Reconveyance Corporation and The Bowers Group. The January 20 order “ADMONISHES plaintiffs

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that this Court will dismiss this action against any remaining defendants if plaintiffs fail to comply

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with this order and fail to file timely papers to show cause why this Court should not dismiss this

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action against any remaining defendants.” (Bold in original.) Plaintiffs filed no papers to address

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why this Court should not dismiss any remaining defendants.
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DISCUSSION

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Failure To Comply With Orders

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This Court’s Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these

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[Local] 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 inherent power to control

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their dockets and “in the exercise of that power, they may impose sanctions including, where appropriate

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. . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may

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dismiss an action, with prejudice, based on a party’s failure to obey a court order or local rules. See, e.g.,

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Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule);

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order

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requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal

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for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone

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v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court

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order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution

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and failure to comply with local rules).

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In determining whether to dismiss an action for failure to comply with a court order or local rules

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or for lack of prosecution, a court must consider several factors: (1) the public’s interest in expeditious

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

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(4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;

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Ferdik, 963 F.2d at 1260-1261; Ghazali, 46 F.3d at 53.

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In this case, the public’s interest in expeditiously resolving this litigation and the Court’s interest

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in managing its docket weigh in favor of dismissal as plaintiffs indicate a lack of interest to further

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litigate or prosecute this action. The third factor -- risk of prejudice to defendant -- also weighs in favor

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of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in

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prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor --

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public policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor

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of dismissal discussed herein. Finally, a court’s warning to a party that its failure to obey the court’s
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order will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d

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at 1262; Malone, 833 F.2d at 132-133; Henderson, 779 F.2d at 1424. The January 20 order

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“ADMONISHES plaintiffs that this Court will dismiss this action against any remaining

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defendants if plaintiffs fail to comply with this order and fail to file timely papers to show cause

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why this Court should not dismiss this action against any remaining defendants.” (Bold in

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original.) Plaintiffs ignored the January 20 order in failing to address why any remaining defendants

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should not be dismissed. As such, plaintiffs disobeyed the January 20 order despite adequate warning

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that dismissal will result from disobedience of this Court’s order.

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Moreover, the January 20 order demonstrates that plaintiffs lack a viable claim under their

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complaint’s theories. This Court construes absence of a response to the January 20 order as a concession

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that plaintiffs lack viable claims against any remaining defendants. As detailed in the January 20 order,

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the complaint’s claims fail as barred legally. Plaintiffs lack viable claims.

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This Court surmises that plaintiffs pursue this action in absence of good faith and that plaintiffs

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exploit the court system solely for delay or to vex defendants. The test for maliciousness is a subjective

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one and requires the court to “determine the . . . good faith of the applicant.” Kinney v. Plymouth Rock

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Squab Co., 236 U.S. 43, 46 (1915); see Wright v. Newsome, 795 F.2d 964, 968, n. 1 (11th Cir. 1986); cf.

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Glick v. Gutbrod, 782 F.2d 754, 757 (7th Cir. 1986) (court has inherent power to dismiss case

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demonstrating “clear pattern of abuse of judicial process”). A lack of good faith or malice also can be

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inferred from a complaint containing untrue material allegations of fact or false statements made with

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intent to deceive the court. See Horsey v. Asher, 741 F.2d 209, 212 (8th Cir. 1984). An attempt to vex

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or delay provides further grounds to dismiss this action against any remaining defendants.

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CONCLUSION AND ORDER

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For the reasons discussed above, this Court:

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DISMISSES this action without prejudice against any remaining defendants, including
Cal-Western Reconveyance Corporation and The Bowers Group; and

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Cal-Western Reconveyance Corporation and The Bowers Group and to close this action.

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DIRECTS the clerk to enter judgment in favor of any remaining defendants, including

IT IS SO ORDERED.
Dated:
66h44d

January 27, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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