Ahmadyar v. First Horizon Home Loans, et al

Filing 51

ORDER signed by Judge Garland E. Burrell, Jr on 9/12/10 DISMISSING CASE with prejudice for failure to prosecute. CASE CLOSED. (Owen, K)

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Ahmadyar v. First Horizon Home Loans, et al Doc. 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. FIRST HORIZON HOME LOANS, a Texas corporation and a division of First Tennessee Bank National Association, Defendant. ________________________________ PATRICIA AHMADYAR, an individual, AHMAD AHMADYAR, an individual, Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2:09-cv-02063-GEB-EFB ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Since Plaintiffs have disregarded two court orders and failed to prosecute their case, Plaintiffs' claims will be dismissed with prejudice. follows. Plaintiffs' claims were dismissed in an order filed March 25, 2010, in which Plaintiffs were provided fourteen days to file an amended complaint. complaint. Plaintiffs, however, did not file an amended The procedural background and basis for the dismissal Therefore an order issued on August 5, 2010, stating: Plaintiffs have not filed an amended pleading or otherwise participated in this litigation. This case, therefore, has languished on the Court's docket without action for over four months. Accordingly, Plaintiffs shall file an explanation no later than August 11, 2010 at 4:30 p.m., stating 1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 why their case should not be dismissed with prejudice under Federal Rule of Civil Procedure 41(b) for their failure to prosecute. [citation omitted.] If Plaintiffs fail to file a timely and satisfactory explanation, this action shall be dismissed with prejudice. (Docket No. 50 2:1-13.) Plaintiffs failed to file a timely response, and to date, have not responded to the August 5, 2010 order. A "district court has the inherent power [to] sua sponte dismiss a case for lack of prosecution." Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (citing Ash v. Cvetkov, 739 F.2d, 493, 496 (9th Cir. 1984)). Dismissal, however, "is a harsh penalty" and a district court must "weigh several factors in determining whether to dismiss [a] case for lack of prosecution: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions." omitted). The first and second factors weigh in favor of dismissal because Plaintiffs' non-compliance with above referenced orders has impaired the public's interest in expeditious resolution of litigation and undermines the Court's ability to manage its docket. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) ("the public's interest in expeditious resolution of litigation always favors dismissal"); Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (stating that "[i]t is incumbent upon the Court to manage its docket without being subject to routine noncompliance of litigants"). The third factor concerning the risk of prejudice to the defendants considers the strength of a plaintiff's excuse for non2 Id. (citations 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 compliance. See Pagtalunan, 291 F.3d at 642-43 (stating that "the risk of prejudice [is related] to the plaintiff's reason for defaulting"). Since Plaintiffs have not provided an excuse for their non-compliance, the third factor also favors dismissal. The fourth factor concerning the public policy favoring disposition of cases on their merits, weighs against dismissal of Plaintiffs' case. Pagtalunan, 291 F.3d at 643 ("[p]ublic policy favors disposition of cases on the merits"). The fifth factor concerning whether the Court has considered less drastic sanctions, weighs in favor of dismissal. This is because Plaintiffs failed to amend their complaint within the time prescribed in the March 25, 2010 dismissal order, and to heed the warning in the August 5, 2010 order that if they failed to timely explain why this action should not be dismissed with prejudice it shall be dismissed with prejudice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (stating "a district court's warning to a party that his failure to obey the court's order will result in dismissal can satisfy the `consideration of alternatives' requirement"). Since the balance of the factors strongly favors dismissal of this case with prejudice, Plaintiffs' claims are dismissed with prejudice and this case shall be closed. Dated: September 12, 2010 GARLAND E. BURRELL, JR. United States District Judge 3

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