Serrano v. Bank of America, N.A. et al

Filing 5

Findings and Recommendations that this case be dismissed, with prejudice, for failure to state a claim for relief, failure to prosecute, and failure to comply with court order, signed by Magistrate Judge Erica P. Grosjean on 5/7/2018. Matter referred to Judge O'Neill. Objections to F&R due by 6/1/2018. (Rosales, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SONIA ALVAREZ SERRANO,

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Case No. 1:18-cv-00313-LJO-EPG

Plaintiff,

FINDINGS AND RECOMMENDATIONS
THAT THIS CASE BE DISMISSED,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM FOR RELIEF,
FAILURE TO PROSECUTE, AND
FAILURE TO COMPLY WITH COURT
ORDER

v.

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BANK OF AMERICA, N.A., et al.,
Defendants.

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(ECF NO. 1)

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OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE (21) DAYS

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Sonia Alvarez Serrano (“Plaintiff”), appearing pro se and in forma pauperis, filed the
Complaint commencing this action on March 6, 2018. (ECF No. 1).

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On March 9, 2018, the Court screened the Complaint and determined that it failed to state

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any cognizable claims. (ECF No. 4). Specifically, the Court concluded that the Complaint merely

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listed causes of action without sufficient factual allegations to state a plausible claim. Id. The

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screening order directed Plaintiff to file an amended complaint or notify the Court that she wishes

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to stand on the Complaint, subject to the issuance of findings and recommendations to the

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assigned district judge, within thirty days of service of the order. Id. The Court also warned

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Plaintiff that failure to file an amended complaint or to notify the court that she wishes to stand on

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the Complaint could result in the dismissal of this action. Id.
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The thirty-day period has expired, and Plaintiff has not filed an amended complaint or

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notified the Court that she wishes to stand on the Complaint. According, the Court recommends

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that this action be dismissed, with prejudice, for failure to state a claim, failure to prosecute, and

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failure to comply with a court order. Plaintiff may file objections within twenty-one days from

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the date of service of these findings and recommendations.

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I.

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SCREENING REQUIREMENT
Under 28 U.S.C. § 1915(e)(2), the Court must conduct a review of an in forma pauperis

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complaint to determine whether it “state[s] a claim on which relief may be granted,” is “frivolous

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or malicious,” or “seek[s] monetary relief against a defendant who is immune from such relief.” If

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the Court determines that the complaint fails to state a claim, it must be dismissed. Id. Leave to

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amend may be granted to the extent that the deficiencies of the complaint can be cured by

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amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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In determining whether a complaint states an actionable claim, the Court must accept the

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allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740

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(1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v.

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Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor. Jenkins

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v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less

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stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342

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(9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after

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Iqbal).

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II.

PLAINTIFF’S ALLEGATIONS
The Complaint reads as follows:
Litigation on wrongful foreclosure and many violations federal
statutes. Fair Housing violation, HARP, Keep Your Home
Emotional Distress Fraud, larceny, theft, false promises. . . .
Securiazation [sic] -violations RICO Quiet Title Judgment,
Summary Judgement. Defendants defaulted 7 times, Declaratory
Judgement, Motion for Adjudication. Recovery and Compensation
for defendants aggressions to plaintiff, Fair Due process Jury Trial
over 100 claims over hundred violations Federal question.
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Plaintiff also attaches to the Complaint what appears to be a 137-page long motion filed in

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Alvarez v. Bank of America, Case No. 3:17-mc-80149-VC (N.D. Ca. Nov. 30, 2017).

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III.

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DISCUSSION
A. Failure to State a Claim for Relief

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A Complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

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at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal

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conclusions are not. Id. at 678. Furthermore, a plaintiff bears the burden of separately setting forth

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her legal claims, and for each claim, briefly and clearly providing the facts supporting the claim

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so that the court and the defendants are readily able to understand the claims. Bautista v. Los

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Angeles Cnty., 216 F.3d 837, 840-41 (9th Cir. 2000).

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Plaintiff’s Complaint fails to meet the pleading standard set forth in Fed. R. Civ. P.

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8(a)(2). Plaintiff’s Complaint is comprised of a list of causes of action and conclusory statements.

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Plaintiff does not set forth any factual allegations to support the conclusory statements or to show

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her entitlement to relief. Furthermore, to the extent that Plaintiff seeks to incorporate the contents

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of the motion filed in her prior case into the Complaint, Plaintiff fails to meet the requirement that

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a complaint contain “a short and plain statement of the claim showing that the pleader is entitled

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to relief.” The motion is excessive in length—bringing the length of the Complaint to 144

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pages—and is incoherent. It combines various legal rules with religious prayers, and is so

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voluminous, rambling, and disjointed as to render it incomprehensible. Accordingly, Plaintiff fails

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to allege a cognizable claim.

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B. Failure to Prosecute and to Comply with a Court Order

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Plaintiff has failed to comply with the screening order, which directed her to file an

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amended complaint or notify the Court that she wishes to stand on the Complaint. (ECF No. 4).
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Plaintiff has failed to timely file an amended complaint, and has not otherwise prosecuted this

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action.

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Courts may impose sanctions, including terminating sanctions, as part of their inherent

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power “to manage their own affairs so as to achieve the orderly and expeditious disposition of

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cases” or based on a failure to comply with court orders. Chambers v. NASCO, Inc., 501 U.S. 32,

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43 (1991); Pagtalunan v. Galazza, 291 F.3d 639, 642 (9th Cir. 2002). A court may dismiss an

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

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comply with local rules. Fed. R. Civ. P. 41(b); L.R. 110; Ghazali v. Moran, 46 F.3d 52, 53 (9th

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Cir. 1995) (citing United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979)) (dismissal for

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noncompliance with local rule); Malone v. United States Postal Serv., 833 F.2d 128, 134 (9th Cir.

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1987) (dismissal for failure to comply with court order).

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“In determining whether to dismiss [an action] for failure to prosecute or failure to comply

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with a court order, the Court must weigh the following factors: (1) the public=s interest in

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

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prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,

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642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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First, the public’s interest in expeditious resolution of litigation and the court’s need to

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manage its docket always favor dismissal. Id. (quoting Yourish v. California Amplifier, 191 F.3d

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983, 990 (9th Cir. 1999)). Thus, these factors weigh in favor of dismissal.

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Second, the public policy favoring disposition on the merits always weighs against
dismissal. Id.
Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, “delay

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inherently increases the risk that witnesses’ memories will fade and evidence will become stale,”

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id. at 643, and it is Plaintiff’s failure to file an amended complaint or to notify the Court that she

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wishes to stand on the Complaint that is causing delay. The Court found that the Complaint fails

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to state a claim approximately two months ago. The case is now stalled until Plaintiff files an
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amended complaint or notifies the Court that she wishes to stand on the Complaint. Therefore,

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the third factor weighs in favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little

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available to the Court that would constitute a satisfactory lesser sanction while protecting the

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Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of

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little use, considering Plaintiff’s in forma pauperis status, and given the stage of these

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proceedings, the preclusion of evidence or witnesses is not available

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Thus, after weighing the factors, the Court finds that dismissal with prejudice is
appropriate.
IV.

CONCLUSION AND RECOMMENDATION

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The Court finds that the Complaint fails to state a claim for relief. Furthermore, Plaintiff

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has failed to comply with the screening order, which directed her to file an amended complaint or

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notify the Court that she wishes to stand on the Complaint. Plaintiff has failed to timely file an

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amended complaint, and has not otherwise prosecuted this action.

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Accordingly, the Court HEREBY RECOMMENDS that:

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1. Pursuant to 28 U.S.C. §1915(e)(2)(B)(ii), Fed. R. Civ. P. 41(b), and L.R. 110, this

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action be DISMISSED, with prejudice, based on Plaintiff=s failure to state a claim

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for relief, as well as his failure to comply with a court order and failure to

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prosecute this action; and

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2. The Clerk of Court be directed to close this case.

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These findings and recommendations are submitted to the district judge assigned to the

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case, pursuant to the provisions of 28 U.S.C. ' 636(b)(l). Within twenty-one (21) days after being

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served with these findings and recommendations, Plaintiff may file written objections with the

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court. Such a document should be captioned, “Objections to Magistrate Judge’s Findings and

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Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may result in the

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waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (quoting

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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

May 7, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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