Narog v. Bank of America Home Loan Servicing LP et al

Filing 6

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/10/12 RECOMMENDING that this action be dismissed for failure to prosecute and to comply with court orders. Referred to Judge Garland E. Burrell, Jr. Objections due within 14 days. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LESLIE NAROG,
Plaintiff,

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No. CIV S-11-2618 GEB EFB PS

vs.
BANK OF AMERICA HOME LOAN
SERVICING LP, et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS

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Defendants.
_________________________________/

This case is before the undersigned pursuant to Eastern District of California Local Rule

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302(c)(21). See 28 U.S.C. § 636(b)(1). On October 4, 2011, plaintiff filed a complaint in this

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action and paid the filing fee. Dckt. No. 1. The same day, the court issued its initial scheduling

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order. Dckt. No. 4. That order directed plaintiff to complete service of process within 120 days

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(see Federal Rule of Civil Procedure (“Rule”) 4(m)), and set a scheduling conference for

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February 15, 2012. Id. The order further directed the parties to file status reports no later than

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fourteen days prior to the February 15, 2012 scheduling conference (or by February 1, 2012),

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and cautioned the parties that failure to obey the federal or local rules or orders of the court

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could result in sanctions, including a recommendation that the case be dismissed. Id.

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On February 8, 2012, because the court file revealed that plaintiff had not filed a status

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report, as required by the October 4, 2011 order, and had not yet effected service of process on
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defendants, the status conference was continued to April 18, 2012 and plaintiff was ordered to

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show cause by April 4, 2012 why this case should not be dismissed for failure to follow court

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orders and for failure to effect service of process within the time prescribed by Rule 4(m). Dckt.

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No. 5 (citing Fed. R. Civ. P. 4(m); E.D. Cal. L.R. 110 (“Failure of counsel or of a party to

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comply with these Rules or with any order of the Court may be grounds for imposition by the

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Court of any and all sanctions authorized by statute or Rule or within the inherent power of the

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Court.”); see also L.R. 183 (“Any individual representing himself or herself without an attorney

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is bound by the Federal Rules of Civil or Criminal Procedure and by these Local Rules.”);

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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure to follow a district court’s local rules

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is a proper ground for dismissal.”)). Plaintiff was also ordered to file a status report on or before

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April 4, 2012. Id. The order to show cause admonished plaintiff that a “[f]ailure to timely

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comply . . . may result in sanctions, including a recommendation that this action be dismissed for

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lack of prosecution.” Id.

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Although the deadline has passed, plaintiff has not filed a response to the order to show

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cause, has not filed a status report, and has not demonstrated that she has properly served any of

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the defendants. In fact, plaintiff has not filed anything in this action since the complaint was

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filed in October 2011. Therefore, the undersigned will recommend that this case be dismissed

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for failure to prosecute and for failure to comply with court orders, the Federal Rules of Civil

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Procedure, and this court’s Local Rules. See Fed. R. Civ. P. 41(b); L.R. 110.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The status (pretrial scheduling) conference currently set for hearing on April 18, 2012,

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is vacated;1 and
2. The February 8, 2012 order to show cause is discharged.

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However, if the recommendation of dismissal herein is not adopted by the district judge,
the undersigned will reschedule the status conference and require the parties to submit status reports.
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IT IS FURTHER RECOMMENDED that:

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1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on

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plaintiff’s failure to prosecute the action and to comply with court orders, the Federal Rules of

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Civil Procedure, and this court’s Local Rules; and

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2. The Clerk be directed to close this case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 10, 2012.

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