Stein v. Bank of America, N.A., et al.,

Filing 65

ORDER signed by Judge Garland E. Burrell, Jr on 12/18/12 ORDERING since the balance of the factors strongly favors dismissal of this action with prejudice, this action is dismissed with prejudice and judgment shall be entered in favor of Defendan ts. Further, in light of Richard C. Sinclairs (SBN 068238) failure to pay the nine hundred dollars ($900.00) in monetary sanctions and repeated failure to respond to the Courts orders, the Clerk of the Court shall forward a copy of this order al ong with copies of docket entries Nos. 56, 59, 61-64 to the following address, so that the California State Bar has information which can be used in its determination whether disciplinary action is appropriate: Office of Chief Trial Counsel The State Bar of California 1149 South Hill Street Los Angeles, CA 90015-2299. Civil Case Terminated. CASE CLOSED. (cc Office of Chief Trial Counsel) (Matson, 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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MARIA CHRISTINA STEIN, aka MARY
STEIN,

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Plaintiff,
v.
BANK OF AMERICA, N.A., successor
in interest to Countrywide Bank,
FSB; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. aka
“MERS”,
Defendants.
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2:10-cv-02827-GEB-EFB
DISMISSAL ORDER, AND
DIRECTIVE THAT STATE BAR BE
APPRISED OF PLAINTIFF’S
COUNSEL’S FAILURE TO COMPLY
WITH SANCTION ORDERS

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An order issued on December 11, 2012, imposing a seven hundred

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dollar ($700.00) monetary sanction against Plaintiff’s counsel, Richard

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C. Sinclair. (ECF No. 64, 2:3-12.) The December 11th order required

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Plaintiff’s counsel to pay this sanction, in addition to an earlier,

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unpaid two hundred dollar ($200.00) monetary sanction, no later than

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4:00 p.m. on December 14, 2012. Id. The December 11th order also

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required Plaintiff to show cause (“OSC”) in a writing to be filed no

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later than December 14, 2012, why this action should not be dismissed

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with prejudice under Federal Rule of Civil Procedure (“Rule”) 41(b) for

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Plaintiff’s repeated failure to comply with the Court’s orders. Id. at

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2:13-22. Plaintiff’s counsel has not paid the two monetary sanctions

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totaling nine hundred dollars ($900.00), and Plaintiff did not file a

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response to the OSC. Therefore, the Court considers whether this action

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should be dismissed with prejudice under Rule 41(b).

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“District courts have inherent power to control their dockets

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and may impose sanctions, including dismissal, in the exercise of that

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discretion.” Oliva v. Sullivan, 958 F.2d 272, 273 (9th Cir. 1991).

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However, since “dismissal is a harsh penalty, it should be imposed as a

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sanction only in extreme circumstances.” Id.

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To dismiss a case as a sanction,

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the district court must consider five factors: (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 alternatives.

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Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (internal

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quotation marks omitted).

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The first and second factors weigh in favor of dismissal in

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this case because Plaintiff’s non-compliance with the Court’s orders has

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impaired the public’s interest in expeditious resolution of litigation

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

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191 F.3d at 990 (9th Cir. 1999) (“the public’s interest in expeditious

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resolution

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Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (stating “[i]t is incumbent

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

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noncompliance of litigants”). Plaintiff twice failed to timely file a

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final pretrial statement and failed to respond to three separate OSC’s.

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See ECF No. 64, 2:20-22 (stating “the Court is unable to prepare an

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appropriate Final Pretrial Order in this action without Plaintiff’s

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compliance.”)

of

litigation

always

favors

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2

dismissal”);

Pagtalunan

v.

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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 (stating that “the

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risk

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defaulting”).

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non-compliance, the third factor also favors dismissal.

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considers

of

prejudice

The

Since

fourth

the

[is

strength

related]

Plaintiff

factor

of

to

has

Plaintiff’s

the

plaintiff’s

provided

concerning

the

no

public

reason

reason

policy

for

for
her

favoring

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disposition of cases on their merits, weighs against dismissal of

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Plaintiff’s 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 drastic sanctions, also weighs in favor of dismissal. The Court

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twice imposed monetary sanctions in an effort to obtain Plaintiff’s

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compliance

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expressly warned in the December 5th OSC “that the continued failure to

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comply with the Court’s orders could result in this action being

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dismissed with prejudice under Rule 41(b) and judgment entered in favor

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of Defendants.” (ECF No. 62, 3:3-6.) See Ferdik v. Bonzelet, 963 F.2d

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1258, 1262 (9th Cir. 1992) (stating “a district court’s warning to a

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party that his failure to obey the court’s order will result in

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dismissal can satisfy the ‘consideration of alternatives’ requirement”).

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Since the balance of the factors strongly favors dismissal of

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this 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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with

its

orders,

to

no

avail.

Further,

Plaintiff

was

Further, in light of Richard C. Sinclair’s (SBN 068238)

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failure to pay the nine hundred dollars ($900.00) in monetary sanctions

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and repeated failure to respond to the Court’s orders, the Clerk of the

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Court shall forward a copy of this order along with copies of docket
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entries Nos. 56, 59, 61-64 to the following address, so that the

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California

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determination whether disciplinary action is appropriate:

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State

Bar

has

information

which

can

be

used

in

Office of Chief Trial Counsel
The State Bar of California
1149 South Hill Street
Los Angeles, CA 90015-2299

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Dated:

December 18, 2012

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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its