Ortega v. Federal National Mortgage Association et al

Filing 5

FINDINGS and RECOMMENDATIONS to Dismiss the Matter for Failing to Comply with Court Orders, signed by Magistrate Judge Jennifer L. Thurston on 6/28/2012. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 7/12/2012. (Hall, S)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REYNALDO ORTEGA,

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Case No. 1:11-cv-01848 LJO JLT

Plaintiff,

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V.

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FINDINGS AND RECOMMENDATIONS
TO DISMISS THE MATTER FOR
FAILING TO COMPLY WITH COURT
ORDERS

FEDERAL NATIONAL MORTGAGE
ASSOCIATION, et al.,

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Defendants.
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On November 7, 2011, Plaintiff Reynaldo Ortega filed his Complaint for damages and

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injunctive relief against multiple defendants related to the refinance and subsequent foreclosure of

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the real property located in Bakersfield, California.

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is recommended the matter be dismissed.

(Doc. 1). For the reasons set forth below, it

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I.

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On November 10, 2011, the Court reassigned Plaintiff’s action to Magistrate Judge

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Thurston. (Doc. 3). Since there has been no activity on this case since that time, Magistrate

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Judge Thurston issued an order to show cause why the matter should not be dismissed for failure

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to prosecute. (Doc. 4). Plaintiff was to respond to the order to show cause, no later than June 25,

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2012, but has failed to do so. (Doc. 4). Plaintiff was cautioned that failure to timely respond to

Procedural History

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the Court’s order may result in the Court dismissing the entire matter. (Doc. 4).

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I.

Legal Standards

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“District courts have inherent power to control their dockets,” and in exercising that

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power, a court may impose sanctions including dismissal of an action. Thompson v. Housing

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

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

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failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 2995)

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(dismissal for failure to comply with local rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th

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Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint);

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

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with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for

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failure to prosecute and to comply with local rules).

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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 the defendants; (4) the public policy

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

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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th

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Cir. 1988). The Court finds that the public’s interest in expeditiously resolving this litigation and

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the court’s interest in managing the docket weigh in favor of dismissal. The Court cannot hold

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this case in abeyance indefinitely based on Plaintiff’s failure to prosecute his case. The third

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factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a presumption of

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injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air

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West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition

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of cases on their merits -- is greatly outweighed by the factors in favor of dismissal discussed

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herein. Finally, given Plaintiff’s failure to respond to the Court’s order to show cause, no lesser

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sanction is feasible.

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II.

Recommendation

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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed for
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Plaintiff's failure to prosecute.

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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 Title 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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"Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections

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shall be served and filed within ten days after service of the objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

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June 28, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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