Folau et al v. U.S. Bank, N.A. et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that this action be dismissed without prejudice signed by Magistrate Judge Gregory G. Hollows on 9/15/11: F&R referred to Judge John A. Mendez. Objections to F&R due within fourteen (14) days. (Kaminski, H)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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GEORGE S. FOLAU, et al.,
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Plaintiffs,
No. CIV S-11-1248 JAM GGH PS
vs.
U.S. BANK, N.A., et al.,
FINDINGS & RECOMMENDATIONS
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Defendants.
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/
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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 May 9, 2011. In the order requiring joint status
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report, filed May 10, 2011, plaintiffs were 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 May 16, 2011, to which plaintiffs did not respond. By
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order filed June 10, 2011, the hearing on the motion was vacated due to plaintiffs’ failure to file
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oppositions.
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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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Furthermore, according to defendants’ motion, this action is property of plaintiff
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George Folau’s bankruptcy estate. Court records indicate that plaintiff George Folau indeed has
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a bankruptcy petition in the Bankruptcy Court in this district. See Defs.’ Mot., Exs. E, F; In re
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Folau, Ch. 7 Case No. 10-35519 (Bankr. E.D. Cal. 2011).1 Pending causes of action are among
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the “legal or equitable interests” that become the property of a bankruptcy estate upon filing a
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bankruptcy petition. See 11 U.S.C. § 541(a)(1) (the bankruptcy estate includes “all legal or
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equitable interests of the debtor in property as of the commencement of the case”); see also Sierra
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Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705, 707 (9th Cir.1986) (even personal
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injury claims are part of the bankruptcy estate whether or not transferable or assignable under
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state law).
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In light of that filing, and because plaintiff George Folau has not indicated that
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the bankruptcy trustee has abandoned the claims against defendants, plaintiff George Folau has
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no standing to prosecute the instant action. See Manlangit v. Nat’l City Mortg., 2010 WL
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2044687, at *1 (E.D. Cal. May 20, 2010) (upon declaration of bankruptcy, all of petitioner’s
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property becomes the property of the bankruptcy estate, included causes of action, and absent
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abandonment by trustee, bankruptcy petitioner loses standing for any causes of action).
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Accordingly, IT IS RECOMMENDED that this action be dismissed without
prejudice pursuant to Federal Rule of Civil Procedure 41(b).
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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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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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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 15, 2011
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/Folau1248.41.wpd
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