Gardner v. American Brokers Conduit et al

Filing 13

ORDER DISMISSING CASE signed by Chief Judge Anthony W. Ishii on 10/18/2012. CASE CLOSED.(Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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KIM GARDNER,
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Plaintiff,
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v.
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AMERICAN BROKERS CONDUIT;
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FREDDIE MAC; FINANCIAL TITLE
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COMPANY; MORTGAGE ELECTRONIC )
REGISTRATION SYSTEMS, INC.; CAL- )
WESTERN RECONVEYANCE CORP.; )
and all persons claiming any legal or
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equitable right, title, lien or interest
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in the property,
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Defendants.
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____________________________________)

1:12-cv-00555-AWI-DLB
ORDER DISMISSING ACTION

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The Court refers the parties to the orders issued July 16, 2012, August 22, 2012 and September 14,
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2012 for a chronology of the proceedings. On February 17, 2012, plaintiff Kim Gardner (hereinafter
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referred to as “Plaintiff”) filed her complaint to quiet title in Fresno County Superior Court against
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defendants American Brokers Conduit, Freddie Mac, Financial Title Company, Mortgage Electronic
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Registration Systems, Inc., Cal-Western Reconveyance Corp. and all persons claiming any legal or
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equitable right, title, lien or interest in the property located at 6427 North Cornelia Avenue, Fresno,
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CA 93722. On April 6, 2012, defendant Federal Home Loan Mortgage Corporation (hereinafter
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referred to as “FHLMC,” erroneously sued as Freddie Mac) removed the action to this Court
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pursuant to 28 U.S.C. §§ 1331 and 1442 and 12 U.S.C. § 1452(f).

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On June 8, 2012, FHLMC filed a motion to dismiss the complaint pursuant to Federal Rule

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of Civil Procedure 12(b)(6). Plaintiff did not file a written opposition to FHLMC’s motion to

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dismiss. On July 16, 2012, the Court granted the motion to dismiss and directed Plaintiff to file an

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amended complaint within thirty days of the July 17, 2012 entry of the order. No amended

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complaint was filed by Plaintiff within the time allotted.

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On August 22, 2012, the Court ordered Plaintiff to show cause in writing by 4:00 p.m. on

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Thursday, September 13, 2012, why no amended complaint had been filed and why the action should

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not be dismissed for failure to comply with the Court’s July 16, 2012 order. The Court cautioned

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that failure to show cause or otherwise respond to the order would result in a dismissal of the action

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with prejudice as against FHLMC. Plaintiff did not show cause or respond to the Court’s order.

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On September 14, 2012, the Court dismissed the action with prejudice as against FHLMC

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for Plaintiff’s failure to respond to the Court’s August 22, 2012 order. The Court further issued an

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order to show cause re: service of the complaint directing Plaintiff to show cause in writing

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demonstrating service of the complaint on the remaining defendants by 4:00 p.m. on Friday, October

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12, 2012. The Court cautioned that failure to show cause would result in a dismissal of the action

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without prejudice as against these defendants. Plaintiff has not shown cause or responded to the

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Court’s September 14, 2012 order.

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“If the plaintiff fails to . . . comply with . . . a court order, a defendant may move to dismiss

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the action or any claim against it.” Fed. R. Civ. P. 41(b); see Ferdik v. Bonzelet, 963 F.2d 1258,

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1260-61 (9th Cir. 1992) (listing factors for court to consider in determining whether to dismiss a case

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for failure to comply with a court order). Where a plaintiff has failed to comply with a court’s

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orders, the court may also dismiss an action pursuant to Rule 41(b) sua sponte. Hells Canyon

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Preservation Council v. United States Forest Service, 403 F.3d 683, 689 (9th Cir. 2005). The Court

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has considered the Ferdik factors and finds they weigh in favor of a dismissal.

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Accordingly, the Court hereby DISMISSES this action without prejudice as to all remaining
defendants and respectfully directs the Clerk of Court to close the case.

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IT IS SO ORDERED.

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Dated:
0m8i78

October 18, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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