Faulkender v. Wells Fargo Home Mortgage, et al

Filing 26

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 3/5/12 Recommending that this action be dismissed with prejudice pursuant to FRCP 4(b) re 1 Notice of Removal. These Findings and Recommendations are submitted to U.S. District Judge Morrison C. England, Jr. Objections to these F&R due within fourteen (14) days. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM E. FAULKENDER,

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Plaintiff,

CIV. NO. S-12-0022 MCE GGH PS

vs.
NUVIEW FINANCIAL SERVICES, et al.,

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FINDINGS & RECOMMENDATIONS
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 January 4, 2012. In the order requiring joint status

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report, filed January 5, 2012, 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 NuView Financial Services and First American Trustee Servicing Solutions LLC

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filed separate motions to dismiss on January 10, 2012, to which plaintiff did not respond. By

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order filed February 16, 2012, the hearing on the motions was vacated due to plaintiff’s failure to

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file oppositions.

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Although the court liberally construes the pleadings of pro se litigants, they are
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).1

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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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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: March 5, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/Faulkender0022.41.wpd

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Although there are additional outstanding defendants who have not appeared in this
case, the entire action should be dismissed as plaintiff has not served them and has therefore
failed to prosecute.
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