Gonzales v. INDYMAC BANK FSB, et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 05/24/11 RECOMMENDING that the 12 , 16 Motions to Dismiss be granted as unopposed; this action be dismissed as to dfts Indymac Bank FSB and A&B Lending ; plf's claims against all dfts be dismissed w/ prejudice and case be closed. Objections to these F&Rs due w/i 14 days; referred to Judge Morrison C. England, Jr. (Benson, A.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARLENE GONZALES,
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Plaintiff,
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No. CIV S-10-2634 MCE DAD PS
vs.
INDYMAC BANK FSB, et al.,
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Defendants.
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FINDINGS AND RECOMMENDATIONS
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Pursuant to the court’s order filed in this case on April 15, 2011 (Doc. No. 25),
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plaintiff was required to show cause in writing no later than May 13, 2011, why sanctions should
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not be imposed on her for failing to file timely opposition or a statement of non-opposition to
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defendants’ motions to dismiss and for failing to attend properly noticed court hearings of those
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motions. Plaintiff, who is proceeding pro se, was cautioned that failure to file a written response
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to the order to show cause, along with her opposition or statement of non-opposition to each
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motion, would be deemed a statement of non-opposition to the granting of defendants’ motions.
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Plaintiff was further cautioned that failure to respond to the order to show cause would constitute
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grounds for imposing appropriate sanctions, including dismissal of this action for lack of
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prosecution. Plaintiff has not responded to the order to show cause in any way.
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PROCEDURAL HISTORY
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Plaintiff commenced this action in this court on September 28, 2010, by filing a
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voluminous complaint that alleges in conclusory terms sixteen separate causes of action arising
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from or related to a mortgage foreclosure. Plaintiff paid the required filing fee, and the Clerk
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issued a summons as to the five named defendants. The matter was referred to the undersigned
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for all purposes encompassed by Local Rule 302(c)(21).
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On December 13, 2010, defendants Mortgage Electronic Registration Systems,
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Inc. (MERS) and U.S. Bank, National Association (U.S. Bank) filed a motion to dismiss
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plaintiff’s complaint. The motion was subsequently re-noticed for hearing on January 21, 2011.
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Plaintiff did not file any response to the properly noticed motion and did not appear at the
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hearing of the motion.
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On January 10, 2011, defendant First American Title Co. (First American) filed a
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motion to dismiss the complaint. The motion was subsequently re-noticed for hearing on
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February 25, 2011. Plaintiff did not file any response to the properly noticed motion and did not
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appear at the hearing of the motion.
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The court’s docket for this case reflects that plaintiff filed only five documents
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after commencing this action. Two documents purport to be evidence of service of process. The
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first of these two documents indicates that copies of plaintiff’s complaint and summons were
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served on defendants by regular mail on October 21, 2010. (Doc. No. 4.) The second document
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indicates that copies of the summons and the court’s order setting status conference were served
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on defendants by certified mail on November 22, 2010. (Doc. No. 11.) The remaining filings
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consist of a motion for lis pendens filed by plaintiff on October 8, 2010, a proof of service of the
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motion for lis pendens filed on October 25, 2010,1 and a notice of change of address filed on
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February 1, 2011. (Doc. Nos. 3, 5 & 22.)
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The unsupported boilerplate motion was denied by order filed November 12, 2010.
(Doc. No. 6.)
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ANALYSIS
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The factors to be weighed in determining whether to dismiss a case 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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In this case, plaintiff’s evidence of service fails to demonstrate that service was
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properly effected in accordance with Federal Rule of Civil Procedure 4(e). Accordingly,
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defendants Indymac Bank FSB and A&B Lending, who have not appeared in the case, must be
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dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
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With respect to the three defendants who appeared in the case and filed motions to
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dismiss, the court notes plaintiff filed no documents responsive to defendants’ motions. Under
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the Local Rules of Practice for the United States District Court for the Eastern District of
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California, opposition, if any, to the granting of a motion “shall be in writing and shall be filed
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and served not less than fourteen (14) days preceding the noticed (or continued) hearing date.”
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Local Rule 230(c). “No party will be entitled to be heard in opposition to a motion at oral
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arguments if opposition to the motion has not been timely filed by that party.” Id. Failure to
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appear at the hearing of a properly noticed motion may, in the discretion of the court, be deemed
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withdrawal of any written opposition that was timely filed, or may result in sanctions. Local
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Rule 230(i).
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Failure of a party to comply with the Local Rules or any order of the court “may
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be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or
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within the inherent power of the Court.” Local Rule 110. Any individual representing himself or
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herself without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the
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Local Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with
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applicable rules and law may be grounds for dismissal or any other sanction appropriate under
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the Local Rules. Id.
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Plaintiff twice failed to file timely responses to defendants’ motions to dismiss
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and twice failed to appear at the hearing of a properly noticed motion, in violation of multiple
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provisions of Local Rule 230. The court issued an order to show cause that provided plaintiff
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with yet another opportunity to file opposition or a statement of non-opposition to defendants’
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motions, but plaintiff failed to respond in any way. The order to show cause warned plaintiff that
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failure to file a written response to the order to show cause together with opposition or a
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statement of non-opposition to each motion would be deemed a statement of non-opposition to
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the granting of the motions. In light of that warning, plaintiff’s failure to respond should be
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deemed a statement of non-opposition to the granting of the motions to dismiss filed by
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defendants MERS, U.S. Bank, and First American, and the motions should be granted.
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Plaintiff’s lack of prosecution of this case renders monetary sanctions futile, and
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the public interest in expeditious resolution of litigation, the court’s need to manage its docket,
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and the risk of prejudice to the defendants all support the sanction of dismissal. Only the public
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policy favoring disposition on the merits counsels against dismissal. In the absence of a showing
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of good cause, the dismissal of defendants Indymac Bank FSB and A&B Lending is mandated by
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Rule 4(m) of the Federal Rules of Civil Procedure in any event, and plaintiff’s failure to
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prosecute the action in any way makes disposition on the merits an impossibility as to any
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defendant. The undersigned will therefore recommend that this action be dismissed with
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prejudice as to all defendants due to plaintiff’s failure to prosecute and to comply with the court’s
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orders. See Fed. R. Civ. P. 41(b).
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Accordingly, IT IS HEREBY RECOMMENDED that:
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1. The motions to dismiss filed by defendants Mortgage Electronic Registration
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Systems, Inc. and US Bank National Association (Doc. No. 12) and defendant First American
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Title Co. (Doc. No. 16) be deemed unopposed and, so deemed, be granted;
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2. This action be dismissed as to defendants Indymac Bank FSB and A&B
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Lending due to plaintiff’s failure to effect service of process upon these defendants within the
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time specified by Federal Rule of Civil Procedure 4(m); and
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3. Plaintiff’s claims against all defendants be dismissed with prejudice due to
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lack of prosecution, as evidenced by plaintiff’s failure to effect service of process upon the two
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non-appearing defendants, failure to file opposition or a statement of non-opposition to the
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motions to dismiss filed on behalf of three defendants, failure to appear at the hearing of the
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motions to dismiss, and failure to prosecute the action in any manner after October 25, 2010; and
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4. This case be closed.
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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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fourteen (14) 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 parties are advised that
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failure to file objections within the specified time may, under certain circumstances, waive the
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right to appeal the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: May 24, 2011.
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