Knapp v. JP Morgan Chase Bank, N.A. et al

Filing 36

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 8/3/2011 RECOMMENDING that this action be dismissed with prejudice. Referred to Judge Kimberly J. Mueller. Objections to F&R due within 14 days. (Zignago, K.)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 FLOYD KNAPP, 10 11 12 Plaintiff, CIV. NO. S-10-2889 KJM GGH PS vs. JP MORGAN CHASE BANK, N.A., et al., 13 FINDINGS & RECOMMENDATIONS Defendants. 14 / 15 This action was referred to the undersigned pursuant to Local Rule 302(c)(21). 16 This case was removed from state court on October 27, 2010. In the order requiring joint status 17 report, filed October 27, 2010, plaintiff was advised of the requirement to obey federal and local 18 rules, as well as orders of this court, and the possibility of dismissal for failure to do so. 19 Defendants filed a motion to dismiss on June 17, 2011, to which plaintiff did not respond. 20 Plaintiff also failed to appear at the July 21, 2011 hearing. 21 Although the court liberally construes the pleadings of pro se litigants, they are 22 required to adhere to the rules of court. As set forth in the district court’s order requiring status 23 report, failure to obey local rules may not only result in dismissal of the action, but “no party will 24 be entitled to be heard in opposition to a motion at oral arguments if opposition has not been 25 timely filed by that party.” E. D. Cal. L. R. 230(c). More broadly, failure to comply with the 26 1 1 Local Rules or “any order of the court may be grounds for imposition . . . of any and all sanctions 2 authorized by statute or Rule or within the inherent power of the Court.” E. D. Cal. L. R. 110; 3 see also E. D. Cal. L. R. 183 (requiring compliance with the Local and Federal Rules by pro se 4 litigants). 5 “Failure to follow a district court’s local rules is a proper ground for dismissal.” 6 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The court should consider: (1) the public’s 7 interest in expeditious resolution of litigation, (2) the court’s need to manage its docket, (3) the 8 risk of prejudice to the defendants, (4) the public policy favoring disposition of cases on their 9 merits, and (5) the availability of less drastic sanctions. Similar considerations authorize 10 dismissal of an action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). Link v. Wabash 11 R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). 12 Moreover, failure to obey court orders is a separate and distinct ground for imposing the sanction 13 of dismissal. See Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 14 (setting forth same factors for consideration as Ghazali). 15 The court has considered the factors set forth in Ghazali. “[T]he key factors are 16 prejudice and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th 17 Cir.1990). Defendants are clearly prejudiced by the requirement of defending an abandoned 18 case, and this court is put in the untenable position of expending limited judicial resources to 19 decide such a case on the merits. The public’s interest in expeditious resolution of litigation, the 20 court’s need to manage its docket, and the unsuitability of a less drastic sanction, direct that this 21 case be dismissed. 22 The court is troubled by plaintiff’s decision not to oppose dismissal of the 23 complaint, especially because plaintiff has been fulfilling his duty under the injunctive relief 24 order to timely pay into a court escrow an amount that approximates fair rent while this eviction 25 case proceeds. In this case in particular, the court placed other matters to the side in order to 26 issue an expeditious ruling on plaintiff’s liberally construed motion for injunctive relief because 2 1 the complaint, or at least a discernable claim therein, contained potential merit. Nevertheless, it 2 now appears that plaintiff expects the court to take over the case for him with plaintiff doing 3 nothing in the prosecution of his litigation aside from waiting for the result(s). The court cannot 4 fulfill its role as a neutral adjudicator of the facts and law in such a capacity. 5 6 7 Accordingly, IT IS RECOMMENDED that this action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 9 fourteen (14) days after being served with these findings and recommendations, any party may 10 file written objections with the court and serve a copy on all parties. Such a document should be 11 captioned “Objections to Magistrate Judge”s Findings and Recommendations.” Any reply to the 12 objections shall be served and filed within fourteen (14) days after service of the objections. The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: August 3, 2011 16 17 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE GGH:076/Knapp2889.41.wpd 18 19 20 21 22 23 24 25 26 3

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