Gempesaw v. Recontrust Company N.A. et al
Filing
14
ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/15/2011 ORDERING that the hearing on dfts' 10 amended motion to dismiss set for 7/7/2011 is VACATED; RECOMMENDING that pltfs case be dismissed with prejud ice as to all defendants pursuant to FRCP 41(b) and LR 110 and 183(a); the Clerk of the Court be directed to close this case and vacate all future dates in the case; Referred to Judge Lawrence K. Karlton; Objections due within 14 days after being served with these F & R's. (Reader, L)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
FEDERICO J. GEMPESAW,
11
12
Plaintiff,
No. 2:11-cv-00811 LKK KJN PS
v.
13
RECONTRUST COMPANY, N.A., et al.,
14
Defendants.
15
ORDER AND
FINDINGS AND RECOMMENDATIONS
/
Presently before the court 1 is an amended motion to dismiss plaintiff’s complaint
16
17
filed by defendants ReconTrust Company, N.A., Countrywide Home Loans, Inc., and BAC
18
Home Loans Servicing, LP.2 Defendants filed their amended motion on April 20, 2011. Plaintiff
19
has filed no written opposition, statement of non-opposition, or other response to the pending
20
motion despite being given multiple opportunities to do so and clear warnings from the court that
21
failure to do so would lead to the involuntary dismissal of his lawsuit with prejudice. For the
22
reasons that follow, the undersigned recommends that plaintiff’s action be dismissed with
23
24
1
This action proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
25
2
26
Defendant BAC Home Loans Servicing, LP asserts that it was erroneously sued as “Bank
of America Home Loans.”
1
1
prejudice pursuant to Federal Rule of Civil Procedure 41(b).
2
I.
BACKGROUND
3
Plaintiff filed this action on March 25, 2011. (Compl., Dkt. No. 1.) On April 20,
4
2011, defendants filed an amended motion to dismiss plaintiff’s complaint pursuant to Federal
5
Rules of Civil Procedure 12(b)(6) and noticed that motion for a hearing to take place on June 9,
6
2011. (Dkt. No. 10.) Pursuant to this court’s Local Rules, plaintiff was obligated to file and
7
serve a written opposition or statement of non-opposition to defendants’ motion at least fourteen
8
days prior to the hearing date, or May 26, 2011. See E. Dist. Local Rule 230(c).3 Plaintiff failed
9
to file any response to the motion.
10
On June 2, 2011, and in response to plaintiff’s failure to file a response to
11
defendants’ motion, the undersigned entered an order that: (1) continued the hearing on the
12
motion to dismiss until July 7, 2011; and (2) required plaintiff to file a written opposition or
13
statement of non-opposition to the pending motion on or before June 9, 2011. (Order, June 2,
14
2011, Dkt. No. 13.) That order stated, in part:
15
Eastern District Local Rule 110 provides that “[f]ailure of counsel
or of a party to comply with these Rules or with any order of the Court
may be grounds for imposition by the Court of any and all sanctions
authorized by statute or Rule or within the inherent power of the Court.”
Moreover, Eastern District Local Rule 183(a) provides, in part:
16
17
18
Any individual representing himself or herself without an
attorney is bound by the Federal Rules of Civil or Criminal
Procedure, these Rules, and all other applicable law. All
obligations placed on “counsel” by these Rules apply to
individuals appearing in propria persona. Failure to comply
19
20
21
3
Eastern District Local Rule 230(c) provides:
22
23
24
25
26
(c) Opposition and Non-Opposition. Opposition, if any, to the granting of
the motion shall be in writing and shall be filed and served not less than
fourteen (14) days preceding the noticed (or continued) hearing date. A
responding party who has no opposition to the granting of the motion shall
serve and file a statement to that effect, specifically designating the motion
in question. No party will be entitled to be heard in opposition to a motion
at oral arguments if opposition to the motion has not been timely filed by that
party. . . .
2
1
therewith may be ground for dismissal . . . or any other
sanction appropriate under these Rules.
2
See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se
litigants must follow the same rules of procedure that govern other
litigants.”). Case law is in accord that a district court may impose
sanctions, including involuntary dismissal of a plaintiff’s case pursuant to
Federal Rule of Civil Procedure 41(b), where that plaintiff fails to
prosecute his or her case or fails to comply with the court’s orders, the
Federal Rules of Civil Procedure, or the court’s local rules. See Chambers
v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act
sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon
Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir.
2005) (stating that courts may dismiss an action pursuant to Federal Rule
of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or
comply with the rules of civil procedure or the court’s orders); Ghazali v.
Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to follow a
district court’s local rules is a proper ground for dismissal.”), cert. denied,
516 U.S. 838 (1995); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.
1992) (“Pursuant to Federal Rule of Civil Procedure 41(b), the district
court may dismiss an action for failure to comply with any order of the
court.”), cert. denied, 506 U.S. 915 (1992); Thompson v. Housing Auth. of
City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that
district courts have inherent power to control their dockets and may
impose sanctions including dismissal), cert. denied, 479 U.S. 829 (1986).
3
4
5
6
7
8
9
10
11
12
13
14
(Id. at 2-3 (emphasis in original, footnote omitted).)4 Later in that order, the court again warned
15
plaintiff that: “Plaintiff’s failure to file a written opposition will be deemed a statement of
16
non-opposition to the pending motion and consent to the granting of the motion to dismiss, and
17
shall constitute an additional ground for the imposition of appropriate sanctions, including a
18
recommendation that plaintiff’s case be involuntarily dismissed with prejudice pursuant to
19
Federal Rule of Civil Procedure 41(b).” (Id. at 3 (emphasis in original).) Thus, the court gave
20
plaintiff very clear warnings that his case would be dismissed for failure to prosecute his action
21
or his failure to comply with the Federal Rules of Civil Procedure, the court’s orders, or the
22
court’s Local Rules.
23
4
24
25
26
The order also included the following footnote, which is omitted in the above-quoted text:
“The Ninth Circuit Court of Appeals had held that under certain circumstances a district court does
not abuse its discretion by dismissing a plaintiff’s case pursuant to Federal Rule of Civil Procedure
41(b) for failing to file an opposition to a motion to dismiss. See, e.g., Trice v. Clark County Sch.
Dist., 376 Fed. Appx. 789, 790 (9th Cir. 2010), cert. denied, 131 S. Ct. 422 (2010).” (Order, June 2,
2011, at 2 n.4.)
3
1
The court’s docket reveals that plaintiff again failed to file a written opposition or
2
statement of non-opposition to defendants’ motion to dismiss. Plaintiff failed to do so despite
3
being given an additional opportunity to respond to the motion and express warnings that the
4
failure to file a written opposition or statement of non-opposition would result in the dismissal of
5
his lawsuit with prejudice.
6
II.
DISCUSSION
7
Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an
8
action for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure,
9
failure to comply with the court’s local rules, or failure to comply with the court’s orders.5 See,
10
e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua
11
sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S.
12
Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action
13
pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute
14
or comply with the rules of civil procedure or the court’s orders); Ferdik v. Bonzelet, 963 F.2d
15
1258, 1260 (9th Cir. 1992) (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court
16
may dismiss an action for failure to comply with any order of the court.”), cert. denied, 506 U.S.
17
915 (1992); Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002) (affirming district
18
court’s dismissal of case for failure to prosecute when habeas petitioner failed to file a first
19
amended petition), cert. denied, 538 U.S. 909 (2003). This court’s Local Rules are in accord.
20
See E. Dist. Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or with
21
any order of the Court may be grounds for imposition by the Court of any and all sanctions
22
authorized by statute or Rule or within the inherent power of the Court.”); E. Dist. Local
23
Rule 183(a) (providing that a pro se party’s failure to comply with the Federal Rules of Civil
24
25
26
5
Rule 41(b) provides, in part: “(b) Involuntary Dismissal; Effect. If the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action
or any claim against it.” Fed. R. Civ. P. 41(b).
4
1
Procedure, the court’s Local Rules, and other applicable law may support, among other things,
2
dismissal of that party’s action).
3
A court must weigh five factors in determining whether to dismiss a case for
4
failure to prosecute, failure to comply with a court order, or failure to comply with a district
5
court’s local rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider:
6
7
8
9
(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.
Id. at 1260-61; accord Pagtalunan, 291 F.3d at 642-43; Ghazali v. Moran, 46 F.3d 52, 53 (9th
10
Cir. 1995), cert. denied, 516 U.S. 838 (1995). The Ninth Circuit Court of Appeals has stated that
11
“[t]hese factors are not a series of conditions precedent before the judge can do anything, but a
12
way for a district judge to think about what to do.” In re Phenylpropanolamine (PPA) Prods.
13
Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).
14
Although involuntary dismissal can be a harsh remedy, the five relevant factors
15
weigh in favor of dismissal of this action. The first two factors strongly support dismissal of this
16
action. Plaintiff’s failure to file an opposition or statement of non-opposition to defendants’
17
motion to dismiss in the first instance, and his failure to do so a second time despite clear
18
warnings of the consequences for such failures, strongly suggests that plaintiff has abandoned
19
this action or is not interested in seriously prosecuting it. See, e.g., Yourish v. Cal. Amplifier,
20
191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation
21
always favors dismissal.”). Moreover, although plaintiff had notice of the continued hearing date
22
and his potentially final opportunity to respond to defendants’ motion on or before June 9, 2011,
23
plaintiff took no action. Any further time spent by the court on this case, which plaintiff has
24
demonstrated a lack of any serious intention to pursue, will consume scarce judicial resources
25
and take away from other active cases. See Ferdik, 963 F.2d at 1261 (recognizing that district
26
courts have inherent power to manage their dockets without being subject to noncompliant
5
1
2
litigants).
In addition, the third factor, which considers prejudice to a defendant as a result of
3
plaintiff’s failure to timely oppose a motion to dismiss, should be given some weight. See
4
Ferdik, 963 F.2d at 1262. A motion to dismiss is an aid to simplifying the issues and dismissing
5
improper claims or parties before discovery ensues. Plaintiff’s failure to oppose the motion to
6
dismiss after being given two opportunities to do so, and plaintiff’s failure to communicate with
7
the court or explain his non-participation in this litigation, raises the real possibility that the
8
defendants in this action might be forced to unnecessarily engage in further litigation against
9
claims that plaintiff does not appear to value enough to pursue in a serious manner. Defendants
10
have been diligently pursuing their motion, and plaintiff stalled this matter and prevented the
11
efficient resolution of this lawsuit. Moreover, unreasonable delay is presumed to be prejudicial.
12
See, e.g., In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d at 1227.
13
The fifth factor, which considers the availability of less drastic measures, also
14
supports dismissal of this action. As noted above, the court has actually pursued remedies that
15
are less drastic than a recommendation of dismissal. See Malone v. U.S. Postal Serv., 833 F.2d
16
128, 132 (9th Cir. 1987) (“[E]xplicit discussion of alternatives is unnecessary if the district court
17
actually tries alternatives before employing the ultimate sanction of dismissal.”), cert. denied,
18
Malone v. Frank, 488 U.S. 819 (1988). The court excused plaintiff’s initial failure to oppose the
19
potentially dispositive motion, granted plaintiff additional time to file an opposition or statement
20
of non-opposition, and continued the hearing on the motion. Moreover, the court advised
21
plaintiff of the requirement of opposing the motion to dismiss and informed him of the
22
requirements of the Local Rules. Furthermore, the court advised plaintiff that he was required to
23
comply with the court’s Local Rules and the Federal Rules of Civil Procedure even though he is
24
proceeding without counsel. It also warned plaintiff in clear terms that failure to comply with the
25
court’s orders would result in a recommendation of dismissal with prejudice. Warning a plaintiff
26
that failure to take steps towards resolution of his or her action on the merits will result in
6
1
dismissal satisfies the requirement that the court consider the alternatives. See, e.g., Ferdik, 963
2
F.2d at 1262 (“[O]ur decisions also suggest that a district court’s warning to a party that his
3
failure to obey the court’s order will result in dismissal can satisfy the ‘consideration of
4
alternatives’ requirement.”) (citing Malone, 833 F.2d at 132-33). At this juncture, the court finds
5
no suitable alternative to a recommendation for dismissal of this action. This finding is
6
supported by the fact that plaintiff’s complaint, which alleges that plaintiff’s home is in
7
foreclosure (see Compl. ¶¶ 10-16), suggests that plaintiff would very likely be unable to pay any
8
monetary sanction imposed in lieu of dismissal.
9
The court also recognizes the importance of giving due weight to the fourth factor,
10
which addresses the public policy favoring disposition of cases on the merits. However, for the
11
reasons set forth above, factors one, two, three, and five strongly support a recommendation of
12
dismissal of this action, and factor four does not materially counsel otherwise. Dismissal is
13
proper “where at least four factors support dismissal or where at least three factors ‘strongly’
14
support dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations
15
and quotation marks omitted). Under the circumstances of this case, the other relevant factors
16
outweigh the general public policy favoring disposition of actions on their merits. See Ferdik,
17
963 F.2d at 1263.
18
III.
CONCLUSION
19
In light of the foregoing, IT IS HEREBY ORDERED that the hearing on
20
defendants’ amended motion to dismiss (Dkt. No. 10), presently scheduled for July 7, 2011, is
21
vacated.
22
It is FURTHER RECOMMENDED that:
23
1.
24
Federal Rule of Civil Procedure Rule 41(b) and Local Rules 110 and 183(a).
25
26
Plaintiff’s case be dismissed with prejudice as to all defendants pursuant to
2.
The Clerk of Court be directed to close this case and vacate all future dates
in this case.
7
1
These findings and recommendations are submitted to the United States District
2
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
3
days after being served with these findings and recommendations, any party may file written
4
objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b).
5
Such a document should be captioned “Objections to Magistrate Judge’s Findings and
6
Recommendations.” Any response to the objections shall be filed with the court and served on
7
all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d).
8
Failure to file objections within the specified time may waive the right to appeal the District
9
Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d
10
11
12
1153, 1156-57 (9th Cir. 1991).
IT IS SO ORDERED AND RECOMMENDED.
DATED: June 15, 2011
13
14
15
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
16
17
18
19
20
21
22
23
24
25
26
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?