Miller v. Wells Fargo Home Mortgage et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 4/15/11 RECOMMENDING that this action be dismissed. Referred to Judge Garland E. Burrell, Jr; Objections due within 21 days after being served with these findings and recommendations. (Becknal, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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FREDERIC MILLER,
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Plaintiff,
No. CIV S-10-0284 GEB DAD PS
vs.
WELLS FARGO HOME
MORTGAGE, et al.,
FINDINGS AND RECOMMENDATIONS
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Defendants.
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/
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This case came before the court for a Status (Pretrial Scheduling) Conference on
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October 29, 2010, pursuant to the order setting status conference filed and served on August 31,
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2010 (Doc. No. 22). Charles W. Nugent, III, Esq. appeared on behalf of defendant HBA
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Mortgage, Inc. No appearance was made by or on behalf of plaintiff, who is proceeding pro se in
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this case. Nor did plaintiff file a status report, as required by the order setting status conference.
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Upon consideration of the entire file, the undersigned now recommends that plaintiff’s remaining
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claims be dismissed with prejudice.
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PROCEDURAL HISTORY
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Plaintiff originally filed his complaint in the Sacramento County Superior Court
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on December 31, 2009. On February 3, 2010, defendant Wells Fargo Home Mortgage removed
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the action pursuant to 28 U.S.C. §§ 1441(b) and 1446 on the grounds that plaintiff’s claims for
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foreclosure by way of “fraudulent inducement” and “illegal usury practices” are completely
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preempted under the National Bank Act (12 U.S.C. §§ 85, 86) and that this court has jurisdiction
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over the action pursuant to 28 U.S.C. § 1331. See Notice of Removal (Doc. No. 1, Ex. A.)
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Defendant First American Loanstar Trustee Services joined in and consented to the removal on
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February 3, 2010. (Doc. No. 2.)
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On February 10, 2010, defendant First American Loanstar Trustee Services and
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defendant Wells Fargo Home Mortgage filed motions to dismiss. (Doc. Nos. 10 & 15.) On
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February 16, 2010, defendant HBA Mortgage, Inc. filed an answer to plaintiff’s complaint. (Doc.
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No. 18.)
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Plaintiff did not file opposition to defendants’ motions to dismiss and did not
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appear at the hearing of defendants’ motions on March 26, 2010. In findings and
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recommendations filed on August 31, 2010, the undersigned recommended that the action be
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dismissed with prejudice as to the two moving defendants. (Doc. No. 21.) Plaintiff did not file
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objections to the findings and recommendations. On September 28, 2010, the assigned district
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judge adopted the findings and recommendations, and the action was dismissed with prejudice as
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to defendants Wells Fargo Home Mortgage and First American Loanstar Trustee Services. (Doc.
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No. 23.)
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Seven defendants named in plaintiff’s complaint have never appeared in this
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action. There is no evidence in the record that plaintiff effected service of process on those
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defendants. In the order setting status conference, the court advised plaintiff that any defendant
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who was not served with a summons and a copy of plaintiff’s complaint within 120 days from
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the date on which the complaint was filed “shall be dismissed pursuant to Rule 4(m) of the
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Federal Rules of Civil Procedure.” (Doc. No. 22 at 3.)
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The court’s August 31, 2010 order setting status conference required plaintiff to
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file and serve a written status report on or before October 15, 2010 and to appear at the status
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conference on October 29, 2010, either in person or telephonically. (Doc. No. 22 at 2.) Plaintiff
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was cautioned that failure to file a timely status report or failure to appear at the status conference
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in person or telephonically may result in a recommendation that this case be dismissed for lack of
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prosecution and as a sanction for failure to comply with court orders and applicable rules.
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Despite the court’s warning, plaintiff did not comply with the orders to file a status report and
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appear at the status conference.
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The court’s docket reveals that plaintiff has filed no document with the court in
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this action since it was removed from state court more than a year ago, and plaintiff has never
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appeared at any court hearing or status conference held in this case. The record reflects that all
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orders issued in this case were mailed to plaintiff at his address of record, and no document
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served on plaintiff by the court has been returned to the court as undeliverable. Plaintiff appears
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to have abandoned this lawsuit.
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ANALYSIS
The factors to be weighed in determining whether to dismiss for lack of
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prosecution are as follows: (1) the public 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 defendant; (4) the public policy
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favoring disposition on the merits; and (5) the availability of less drastic sanctions. Ferdik v.
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Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir.
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1988). Dismissal is a harsh penalty that should be imposed only in extreme circumstances.
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Ferdik, 963 F.2d at 1260.
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Here, plaintiff’s complete lack of participation in this case post-removal renders
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monetary sanctions unavailable, and the public interest in expeditious resolution of litigation, the
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court’s need to manage its docket, and the risk of prejudice to defendant HBA Mortgage, Inc. and
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the seven unserved defendants all support the sanction of dismissal. Only the public policy
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favoring disposition on the merits counsels against dismissal. However, in the absence of a
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showing of good cause, dismissal of the unserved defendants is mandated by Rule 4(m) of the
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Federal Rules of Civil Procedure in any event, and plaintiff’s complete abandonment of his
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claims against defendant HBA Mortgage, Inc. makes disposition on the merits an impossibility.
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The undersigned will therefore recommend that this action be dismissed with prejudice as to all
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remaining defendants due to lack of prosecution.
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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed
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with prejudice as to all remaining defendants due to lack of prosecution, as evidenced by
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plaintiff’s failure to effect service of process upon seven defendants within the time specified by
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Federal Rule of Civil Procedure 4(m), failure to appear at the status (pretrial scheduling)
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conference, failure to file a status report, and failure to prosecute the action in any manner since
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February 3, 2010. See Fed. R. Civ. P. 41(b).
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These findings and recommendations will be submitted to the United States
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District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
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twenty-one (21) days after being served with these findings and recommendations, any party may
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file written objections with the court. A document containing objections should be titled
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to objections
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shall be filed within seven (7) days after service of the objections. The pro se plaintiff is 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. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: April 15, 2011.
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