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

Filing 41

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/29/11 recommending that this action be dismissed re 1 Notice of Removal, filed by Chase Home Mortgage, LLC, JP Morgan Chase Bank, N.A., Federal National Mortgage Association. Objections to F&R due within 14 days. (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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FLOYD KNAPP,

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Plaintiff,

CIV. NO. S-10-2889 KJM GGH PS

vs.

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JP MORGAN CHASE BANK, N.A., et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
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This action was referred to the undersigned pursuant to Local Rule 302(c)(21).

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This case was removed from state court on October 27, 2010. In the order requiring joint status

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report, filed October 27, 2010, plaintiff was advised of the requirement to obey federal and local

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rules, as well as orders of this court, and the possibility of dismissal for failure to do so.

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Defendants filed a motion to dismiss on June 17, 2011, to which plaintiff did not respond.

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Plaintiff also failed to appear at the July 21, 2011 hearing. On August 4, 2011, this court issued

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findings and recommendations, recommending that this action be dismissed for plaintiff’s failure

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to oppose defendants’ motion to dismiss. On August 11, 2011, plaintiff filed objections, which

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state that he did not receive a court order regarding the July 21, 2011 hearing until days after the

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hearing. He claims he also did not receive the motion to dismiss and was unaware of the hearing

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or the motion. Despite plaintiff’s various, somewhat suspect excuses, plaintiff was given the
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opportunity to oppose the motion, and warned that he would not be granted any further

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extensions. Plaintiff has not filed an opposition.

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Although the court liberally construes the pleadings of pro se litigants, they are

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required to adhere to the rules of court. As set forth in the district court’s order requiring status

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report, failure to obey local rules may not only result in dismissal of the action, but “no party will

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be entitled to be heard in opposition to a motion at oral arguments if opposition has not been

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timely filed by that party.” E. D. Cal. L. R. 230(c). More broadly, failure to comply with the

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Local Rules or “any order of the court may be grounds for imposition . . . of any and all sanctions

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authorized by statute or Rule or within the inherent power of the Court.” E. D. Cal. L. R. 110;

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see also E. D. Cal. L. R. 183 (requiring compliance with the Local and Federal Rules by pro se

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litigants).

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“Failure to follow a district court’s local rules is a proper ground for dismissal.”

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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The court should consider: (1) the public’s

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interest in expeditious resolution of litigation, (2) the court’s need to manage its docket, (3) the

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risk of prejudice to the defendants, (4) the public policy favoring disposition of cases on their

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merits, and (5) the availability of less drastic sanctions. Similar considerations authorize

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dismissal of an action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). Link v. Wabash

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R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991).

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Moreover, failure to obey court orders is a separate and distinct ground for imposing the sanction

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of dismissal. See Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)

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(setting forth same factors for consideration as Ghazali).

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The court has considered the factors set forth in Ghazali. “[T]he key factors are

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prejudice and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th

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Cir. 1990). Defendants are clearly prejudiced by the requirement of defending an abandoned

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case, and this court is put in the untenable position of expending limited judicial resources to

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decide such a case on the merits. The public’s interest in expeditious resolution of litigation, the
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court’s need to manage its docket, and the unsuitability of a less drastic sanction, direct that this

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case be dismissed.

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As stated in its previous findings, the court is troubled by plaintiff’s decision not

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to oppose dismissal of the complaint, especially because plaintiff has been fulfilling his duty

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under the injunctive relief order to timely pay into a court escrow an amount that approximates

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fair rent while this eviction case proceeds. In this case in particular, the court placed other

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matters to the side in order to issue an expeditious ruling on plaintiff’s liberally construed motion

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for injunctive relief because the complaint, or at least a discernable claim therein, contained

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potential merit. Nevertheless, it now appears that plaintiff expects the court to take over the case

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for him with plaintiff doing nothing in the prosecution of his litigation aside from waiting for the

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result(s). The court cannot fulfill its role as a neutral adjudicator of the facts and law in such a

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capacity.

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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

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). 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 and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the

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objections shall be served and filed within fourteen (14) days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: September 29, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:076:Knapp2889.41.2.wpd

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