Solano v. America's Servicing Company, et al

Filing 56

ORDER of dismissal signed by Judge Garland E. Burrell, Jr on 10/25/11 ORDERING that since the balance of the factors favors dismissal of this action with prejudice, this action is dismissed with prejudice and judgment shall be entered in favor of Defendants. CASE CLOSED(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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CONSTANCE SOLANO and the SOLANO
FAMILY TRUST,

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Plaintiffs,

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v.
AMERICA’S SERVICING COMPANY, a
division of WELLS FARGO, NA;
MORTGAGEIT, INC.; MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC.; NDEX WEST, LLC; FINANCIAL
TITLE COMPANY; U.S. BANK NA;
BANC OF AMERICA FUNDING 2007-6
TRUST; MORTGAGE AND INVESTORS
INVESTMENT CONSULTANTS, INC.,
Defendants.
________________________________

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2:10-cv-02426-GEB-GGH
ORDER OF DISMISSAL

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Plaintiffs failed to file an amended complaint within the time

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provided in an order filed on September 27, 2011.

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2011 order granted Defendants’ Federal Rule of Civil Procedure (“Rule”)

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12(b)(6) dismissal motion, provided Plaintiffs fourteen (14) days within

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which to file a Second Amended Complaint, and warned Plaintiffs “that a

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dismissal

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Plaintiffs fail[] to file an amended complaint within the prescribed

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time period.” (ECF No. 54, 25:6-8.) Plaintiffs did not file an amended

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complaint within the prescribed time period. Therefore, this action will

with

prejudice

could

be

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entered

under

The September 27,

[Rule]

41(b)

if

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be dismissed with prejudice under Rule 41(b) because of Plaintiffs’

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failure to comply with the September 27, 2011 order.

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Rule 41(b) allows the court to dismiss an action for failure

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to file an amended complaint within the period specified in an order.

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See

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Ninth Circuit precedent, when a plaintiff fails to amend his complaint

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after the district judge dismisses the complaint with leave to amend,

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the dismissal is typically considered a dismissal for failing to comply

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with a court order rather than for failing to prosecute the claim.”).

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When determining whether a dismissal sanction is appropriate, “the

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district court must consider five factors: (1) the public’s interest in

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

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docket; (3) the risk of prejudice to the defendants; (4) the public

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policy favoring disposition of cases on their merits; and (5) the

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availability of less drastic alternatives.” Id. at 990 (quotation and

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citations omitted).

Yourish v. Cal. Amplifier, 191 F.3d 983, 986 (9th Cir. 1999)(“Under

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The first and second factors weigh in favor of dismissal in

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this case because Plaintiffs’ non-compliance with the above-referenced

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order has impaired the public’s interest in expeditious resolution of

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litigation and undermines the Court’s ability to manage its docket. See

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Yourish, 191 F.3d at 990 (9th Cir. 1999) (“[T]he public’s interest in

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expeditious

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“It is

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incumbent upon the Court to manage its docket without being subject to

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routine noncompliance of litigants.”); Oliva v. Sullivan, 958 F.2d 272,

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273 (9th Cir. 1991)(“District courts have inherent power to control

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their dockets and may impose sanctions, including dismissal, in the

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exercise of that discretion.”).

resolution

of

litigation

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always

favors

dismissal.”);

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The

third

factor

concerning

the

risk

of

prejudice

to

excuse

for

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Defendants

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non-compliance. See Pagtalunan, 291 F.3d at 642-43 (“[T]he risk of

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prejudice [is related] to the plaintiff’s reason for defaulting.”).

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Since Plaintiffs have provided no reason for their non-compliance, the

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third factor also favors dismissal.

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considers

The

fourth

the

strength

factor

of

concerning

a

plaintiff’s

the

public

policy

favoring

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disposition of cases on their merits, weighs against dismissal of

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Plaintiffs’ case. Pagtalunan, 291 F.3d at 643 (“Public policy favors

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disposition of cases on the merits.”).

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The fifth factor concerning whether the Court has considered

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less

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Plaintiffs failed to amend its complaint within the prescribed time

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period despite the warning that the action could be dismissed with

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prejudice as a result. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992) (“[A] district court’s warning to a party that his failure to

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obey

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‘consideration of alternatives’ requirement.”).

drastic

the

sanctions,

court’s

order

also

will

weighs

result

in

in

favor

of

dismissal

dismissal

can

since

satisfy

the

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Since the balance of the factors favors dismissal of this

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action with prejudice, this action is dismissed with prejudice and

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judgment shall be entered in favor of Defendants.

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Dated:

October 25, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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