Latuhoi v. Bank of America N.A et al

Filing 9

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 5/15/12 VACATING the 5/17/12 hearing on 4 Motion to Dismiss filed by Rebecca L. Lang, McCarthy & Holthus, LLP and RECOMMENDING that this action be dismissed. Referred to Judge Morrison C. England, Jr. Objections to F&R due 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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SIONE V. LATUHOI,
Plaintiff,

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No. CIV 2:12-cv-0370-MCE-JFM (PS)

vs.
BANK OF AMERICA, N.A., et al.,

ORDER AND

Defendants.

FINDINGS AND RECOMMENDATIONS
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On March 6, 2012, defendants filed a motion to dismiss. After plaintiff failed to

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oppose the motion, the court issued an order dated April 10, 2012 ordering plaintiff to file an

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opposition or a statement of non-opposition to the pending motion within thirty days. Plaintiff

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was informed that failure to file an opposition would result in a recommendation that this action

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be dismissed pursuant to Fed. R. Civ. P. 41(b). The thirty day period has now expired and

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plaintiff has not responded to the court’s order.

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“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss

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an action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258,

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1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a

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court order the district court must weigh five factors including: ‘(1) the public's interest in

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expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of
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prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits;

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and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting

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Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46

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F.3d 52, 53 (9th Cir. 1995).

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In determining to recommend that this action be dismissed, the court has

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considered the five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly

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support dismissal of this action. The action has been pending since February 2012, two of the

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four defendants have yet to appear and the instant motion to dismiss has remained unopposed for

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over two months. Plaintiff’s failure to comply with the Local Rules and the court’s April 12,

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2012 order suggests that he has abandoned this action and that further time spent by the court

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thereon will consume scarce judicial resources in addressing litigation which plaintiff

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demonstrates no intention to pursue.
The fifth factor also favors dismissal. The court has advised plaintiff of the

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requirements under the Local Rules and granted ample additional time to oppose the pending

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motion, all to no avail. The court finds no suitable alternative to dismissal of this action.
Under the circumstances of this case, the third factor, prejudice to defendants

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from plaintiff’s failure to oppose the motion, should be given little weight. Plaintiff’s failure to

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oppose the motion does not put defendants at any disadvantage in this action. See Ferdik, 963

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F.2d at 1262. Indeed, defendants would only be “disadvantaged” by a decision by the court to

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continue an action plaintiff has abandoned. The fourth factor, the public policy favoring

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disposition of cases on their merits, weighs against dismissal of this action as a sanction.

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However, for the reasons set forth supra, the first, second, and fifth factors strongly support

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dismissal and the third factor does not mitigate against it. Under the circumstances of this case,

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those factors outweigh the general public policy favoring disposition of cases on their merits.

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See Ferdik, 963 F.2d at 1263.

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For the foregoing reasons, IT IS HEREBY ORDERED that the May 17, 2012
hearing on defendants’ motion to dismiss is vacated; and

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IT IS HEREBY RECOMMENDED that this action be dismissed 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 28 U.S.C. § 636(b)(l). Within fourteen

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days 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.” Any response to the

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objections shall be filed and served within fourteen 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: May 15, 2012.

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