Villarino v. Specialized Loan Servicing LLC et al
Filing
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ORDER AND FINDINGS and RECOMMENDATIONSsigned by Magistrate Judge John F. Moulds on 07/20/12 ORDERING that the 07/26/12 hearing on the 7 Motion to Dismiss is VACATED and RECOMMENDING that the 7 Motion to Dismiss be granted. Objections to these F&Rs due within 14 days; 7 Motion referred to Judge William B. Shubb. (Benson, 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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MARCIAL VILLARINO, III,
Plaintiff,
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vs.
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No. CIV 2:12-cv-0889-WBS-JFM (PS)
SPECIALIZED LOAN SERVICING,
LLC, et al.,
ORDER AND
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Defendants.
FINDINGS & RECOMMENDATIONS
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This action was referred to the undersigned pursuant to Local Rule 302(c)(21).
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On April 13, 2012, defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
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Local Rule 230(c) provides that opposition to the granting of a motion must be
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filed fourteen days preceding the noticed hearing date. The Rule further provides that “[n]o
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party will be entitled to be heard in opposition to a motion at oral arguments if written opposition
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to the motion has not been timely filed by that party.” Id.
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Despite two opportunities to file an opposition to defendants’ motion to dismiss,
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plaintiff has not done so. See Doc. No. 14. Plaintiff's failure to oppose should therefore be
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deemed a waiver of opposition to the granting of the motion.
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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. Plaintiff removed this action on April 5, 2012, yet has failed to
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participate any further in this action. Defendant’s motion to dismiss was filed over three months
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before the date of this order, and plaintiff has had more than sufficient time to file a response.
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Plaintiff was advised of the requirement that he file an opposition and was informed that failure
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to do so would result in a recommendation that this action be dismissed. Doc. No. 14.
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Plaintiff’s failure to comply with the Local Rules and the court’s June 20, 2012 order suggests
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that he has abandoned this action and that further time spent by the court thereon will consume
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scarce judicial resources in addressing litigation which plaintiff demonstrates no intention to
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pursue.
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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.
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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, public policy favoring disposition
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of cases on their merits, weighs against dismissal of this action as a sanction. However, for the
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reasons set forth supra, the first, second, and fifth factors strongly support dismissal and the third
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factor does not mitigate against it. Under the circumstances of this case, those factors outweigh
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the general public policy favoring disposition of cases on their merits. See Ferdik, 963 F.2d at
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1263.
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Accordingly, IT IS HEREBY ORDERED that the hearing on defendants’ motion
to dismiss, set for July 26, 2012, is vacated; and
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IT IS HEREBY RECOMMENDED that:
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1. Defendants' April 13, 2012 motion to dismiss be granted; and
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2. This action be dismissed.
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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: July 20, 2012.
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