Kumar et al v. New Century Mortgage Corporation et al

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 6/4/12 RECOMMENDING that this action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, 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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ASHWINI L. KUMAR, et al.,

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Plaintiffs,

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No. CIV S-11-0338 GEB GGH PS

vs.
NEW CENTURY MORTGAGE CORP., et al.,,

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FINDINGS & RECOMMENDATIONS

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Defendants.

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

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This action was removed from state court on February 4, 2011. In the order requiring joint status

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report, filed February 7, 2011, plaintiffs were advised of the requirement to obey federal and

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

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Defendant ReconTrust Company filed a motion to dismiss on January 27, 2012, to which

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plaintiffs did not respond.1 By order filed March 6, 2012, the hearing on the motion was vacated

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due to plaintiffs’ failure to file oppositions.

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Defendants New Century Mortgage Corporation and Cal-Western Reconveyance
Corporation have not appeared in the action.
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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. In sum, the court now has had much experience resolving pro se cases
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brought for the purpose of delaying the inevitable foreclosure of one’s home, with the same result

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on the merits, that the law does not provide a remedy for this unfortunate situation.

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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: June 4, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/Kumar0338.41.wpd

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