Martinez v. Bank of America Corporation et al

Filing 23

FINDINGS and RECOMMENDATIONS Recommending Dismissal of This Action re 21 signed by Magistrate Judge Gary S. Austin on 10/10/2012. Objections to F&R due by 11/16/2012. (Bradley, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERT ROY MARTINEZ,
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Plaintiff,
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v.
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BANK OF AMERICA, CORPORATION, )
a Corporation, et al.,
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Defendants.
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1:11-cv-2061 AWI GSA
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF THIS
ACTION
(Doc. 21)

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INTRODUCTION

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Plaintiff, Roy Martinez, (“Plaintiff”) filed this civil action against Defendants, Bank of

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America Corporation; Bank of America, N.A.; Countrywide Financial; America’s Wholesale

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Lender; Quality Loan Service Corporation; Mortgage Electronic Registration Systems, Inc.

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(“MERS”); and Federal Home Loan Mortgage Corporation, alleging unlawful mortgage practices

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and the unlawful foreclosure of his home. (Doc. 1). Subsequently, Plaintiff filed an identical

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complaint entitled “Amended Complaint for Damages” naming the same Defendants and

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alleging the same causes of action. (Doc. 3).

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On August 23, 2012, the Magistrate Judge issued an Order Dismissing Plaintiff’s

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Complaint with Leave to Amend. (Doc. 21). The Court ordered that Plaintiff be allowed to file

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a Second Amended Complaint. Plaintiff was ordered to serve the amended pleading within thirty

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(30) days of the service of the order. To date, Plaintiff has failed to comply with this Court’s

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order.

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DISCUSSION
Local Rule 11-110 provides that “a failure 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

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and all sanctions . . . within the inherent power of the Court.@ District courts have the inherent

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power to control their dockets and Ain the exercise of that power, they may impose sanctions

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including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d

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829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s

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failure to prosecute an action, failure to obey a court order, or failure to comply with local rules.

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See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with

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local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to

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comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439,

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1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs

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to keep court apprized of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir.

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1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421,

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1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). In

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determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or

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failure to comply with local rules, the court must consider several factors: (1) the public’s interest

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

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

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and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at

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1260-61; Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at

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1423-24.

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In the instant case, the Court finds that the public’s interest in expeditiously resolving this

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litigation and the Court’s interest in managing the docket weigh in favor of dismissal because

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there is no indication that the Plaintiff intends to prosecute this action. The third factor, risk of

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prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises

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from any unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524

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(9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their merits, is
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greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party that

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his failure to obey the court’s order will result in dismissal satisfies the “consideration of

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alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779

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F.2d at 1424. The Court’s order requiring Plaintiff to file an amended complaint was clear that

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dismissal would result from non-compliance with the Court's order. (Doc. 21, at pg. 16, lines 14-

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16).

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RECOMMENDATION
Based on the above, IT IS HEREBY RECOMMENDED that this action be DISMISSED
for Plaintiff’s failure to comply with a court order.
These findings and recommendations will be submitted to the Honorable Anthony W.

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Ishii, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after

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being served with these Findings and Recommendations, Plaintiff may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge's Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
6i0kij

October 10, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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