Johnson et al v. Bank United FSB et al

Filing 37

ORDER signed by Judge Garland E. Burrell, Jr. on 05/22/12 ORDERING that defendant's 36 Motion to Dismiss is GRANTED and plaintiff's deceit, fraud, and constructive fraud claims are DISMISSED with prejudice. (Benson, A.)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE EASTERN DISTRICT OF CALIFORNIA

7
8

CAROLINA JOHNSON AND CLAUDE
COLWELL,

9

Plaintiffs,

10

v.

11

BANK UNITED,

12

Defendant.
________________________________

13

)
)
)
)
)
)
)
)
)
)
)

2:10-cv-02567-GEB-KJM
ORDER*

14

Defendant seeks an order dismissing Plaintiffs’ deceit, fraud,

15

and constructive fraud claims with prejudice under Federal Rule of Civil

16

Procedure (“Rule”) 41(b) since “Plaintiffs have failed to timely file

17

their Amended Complaint pursuant to this Court’s order.” (Def.’s Mot.

18

3:26-27.) Plaintiffs did not file an opposition brief.

19

An order issued on October 11, 2011, dismissing Plaintiffs’

20

deceit, fraud, and constructive fraud claims against Defendant. (ECF No.

21

35.) The October 11, 2011 Order granted Plaintiffs “fourteen (14) days

22

from the date on which this order is filed to file a Second Amended

23

Complaint addressing the deficiencies in any claim dismissed without

24

prejudice” and warned Plaintiffs that “any dismissed claim may be

25

dismissed with prejudice under [Rule] 41(b) if Plaintiffs fail to file

26

an amended complaint within the prescribed time period.” Id. 9:7-13.

27
28

*

argument.

This matter is deemed suitable for decision without oral
E.D. Cal. R. 230(g).
1

1

Plaintiffs did not file an amended complaint within the prescribed time

2

period. In light of Defendant’s Rule 41(b) dismissal with prejudice

3

request, and the expired leave to amend period prescribed in the October

4

11, 2011 Order, the Court considers whether Plaintiffs’ deceit, fraud,

5

and constructive fraud claims should be dismissed with prejudice under

6

Rule 41(b) for failure to comply with a court order.

7
8

When deciding whether to dismiss a case for failure to comply
with a court order, a court must consider:

9

(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 defendants/
respondents; (4) the availability of less drastic
alternatives; and (5) the public policy favoring
disposition of cases on their merits.

10
11
12
13

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

14

The first and second factors weigh in favor of dismissal with

15

prejudice

16

non-compliance with the October 11, 2011 Order has impaired the public’s

17

interest in expeditious resolution of litigation and undermines the

18

Court’s ability to manage its docket. See id. (“It is incumbent upon the

19

Court

20

noncompliance of litigants.”); Yourish v. Cal. Amplifier, 191 F.3d 983,

21

986 (9th Cir. 1999) (“[T]he public’s interest in expeditious resolution

22

of litigation always favors dismissal.”).

to

23

of

the

manage

The

above-referenced

its

third

docket

factor

claims

without

concerning

being

the

since

subject

risk

of

Plaintiffs’

to

routine

prejudice

to

a

24

defendant

25

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

26

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

27

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

28

third factor also favors dismissal with prejudice.

considers

the

strength

2

of

a

plaintiff’s

excuse

for

1

The fourth factor concerning whether the Court has considered

2

less drastic sanctions, also weighs in favor of dismissal with prejudice

3

since Plaintiffs failed to amend their complaint within the prescribed

4

time period despite the warning that the claims could be dismissed with

5

prejudice if an amended complaint was not timely filed. See Ferdik v.

6

Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (“[A] district court’s

7

warning to a party that his failure to obey the court’s order will

8

result in dismissal can satisfy the ‘consideration of alternatives’

9

requirement.”).

10

The

fifth

factor

concerning

the

public

policy

favoring

11

disposition of claims on their merits, weighs against dismissal of the

12

above-referenced claims with prejudice. See Pagtalunan, 291 F.3d at 643

13

(“Public policy favors disposition of cases on the merits.”).

14

Since the balance of the factors strongly favors dismissal

15

with prejudice, Defendant’s motion is GRANTED, and Plaintiffs’ deceit,

16

fraud, and constructive fraud claims are dismissed with prejudice.

17

Dated:

May 22, 2012

18
19
20

GARLAND E. BURRELL, JR.
United States District Judge

21
22
23
24
25
26
27
28
3