Bhinder v. Bank of America, N.A.

Filing 21

DISMISSAL ORDER signed by Judge Garland E. Burrell, Jr. on 3/18/2014 ORDERING that this action is DISMISSED with prejudice. Judgment shall be entered in favor of Defendant. CASE CLOSED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SEWA BHINDER,

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2:13-cv-216-GEB-CKD

Plaintiff,

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No.

DISMISSAL ORDER1

v.
BANK OF AMERICA, N.A.,

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Defendant.

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Defendant seeks an order dismissing this action with

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prejudice under Federal Rule of Civil Procedure (“Rule”) 41(b)

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“for failure to prosecute and failure to comply with a court

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order.” (Mot. to Dismiss 6:10, ECF No. 18.) Plaintiff failed to

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file an opposition or statement of non-opposition to Defendant‟s

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pending motion as required by Local Rule 230(c).
The dismissal order Defendant references was filed on

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August

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dismissal motion and provided Plaintiff fourteen days with which

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to file an amended complaint, and warned Plaintiff “that failure

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to file an amended complaint within the prescribed time period

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could result in dismissal with prejudice under [Rule] 41(b).”

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(Order Granting Def.‟s Mot. to Dismiss 4:24-5:2, ECF No. 16.)

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Defendant also notifies the undersigned judge in the motion that

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5,

2013.

That

order

granted

Defendant‟s

Rule

12(b)(6)

This matter is deemed suitable for decision without oral argument. E.D.
Cal. R. 230(g), and therefore the hearing scheduled on March 24, 2014 is
vacated.

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“[o]n

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discussions, Plaintiff and [Defendant] filed a joint motion to

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extend the time for [P]laintiff to file an amended pleading.”

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(Mot.

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referenced joint motion for hearing or to otherwise bring it to

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the attention of the undersigned judge. In the referenced joint

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motion, the parties sought “to extend Plaintiff‟s time to file an

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amended pleading in accordance with the Court‟s August 5, 2013

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Order

August

to

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Dismiss

for

2013,

3:16-17.)

forty-five

(45)

in

light

The

of

parties

days,”

pending

failed

presumably

to

until

settlement

notice

the

October

3,

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2013. (J. Mot. to Extend Time 3:1-3, ECF No. 17.) Plaintiff has

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not yet filed an amended complaint.

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District courts may dismiss an action under Rule 41(b)

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for failure to comply with a Local Rule or a court order. See,

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e.g., Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure

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to follow a district court‟s local rules is a proper ground for

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dismissal.”); Ferdick v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.

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1992) (holding a district court may dismiss an action under Rule

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41(b) “for failure to comply with any order of the court”).

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However,

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imposed as a sanction only in extreme circumstances.” Oliva v.

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Sullivan, 958 F.2d 272, 273 (9th Cir. 1991).

since

“dismissal

is

a

harsh

penalty,

it

should

be

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When deciding whether to dismiss a case as a sanction

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under Rule 41(b), “the district court must consider five factors:

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(1)

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litigation; (2) the court's need to manage its docket; (3) the

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risk

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favoring

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availability

the

of

public‟s

prejudice

interest

to

disposition
of

less

the
of

in

expeditious

defendants;

cases

drastic

on

(4)

their

the

merits;

alternatives.”
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resolution

public
and

Yourish

of

policy
(5)

v.

the
Cal.

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Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Hernandez

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v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)) (internal

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quotation marks omitted).

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The

first

and

second

factors

weigh

in

favor

of

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dismissal in this case since Plaintiff‟s non-compliance with the

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dismissal order has impaired the public‟s interest in expeditious

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resolution of litigation and undermines the Court‟s ability to

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manage its docket. See Yourish, 191 F.3d at 990 (“[T]he public‟s

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interest in expeditious resolution of litigation always favors

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dismissal . . . .”); Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th

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Cir. 2002) (“It is incumbent upon the Court to manage its docket

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without

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litigants . . . .”).

being

subject

to

routine

noncompliance

of

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The third factor concerning the risk of prejudice to

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Defendant considers the strength of a plaintiff‟s excuse for non-

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compliance.

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prejudice

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defaulting”). Since Plaintiff has provided no reason for its non-

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compliance, the third factor also favors dismissal.

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See
[is

The

id.

at

642–43

related]

fourth

to

(stating
the

factor,

that

“the

plaintiff‟s

concerning

the

risk

reason

public

of
for

policy

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favoring disposition of cases on their merits, weighs against

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dismissal of Plaintiff‟s case. Id. at 643 (“Public policy favors

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disposition of cases on the merits.”).

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The

fifth

less

factor,

drastic

concerning

sanctions,

whether
weighs

in

Court
favor

has

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considered

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dismissal since Plaintiff failed to amend its complaint within

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the prescribed time period, despite the warning that the action

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could be dismissed with prejudice as a result. See Ferdick, 963
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also

the

of

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F.2d at 1262 (“[A] district court‟s warning to a party that his

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failure to obey the court‟s order will result in dismissal can

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satisfy the „consideration of alternatives‟ requirement.”).

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The balance of the factors strongly favors dismissal of

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this action with prejudice. Therefore, this action is dismissed

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with prejudice. Judgment shall be entered in favor of Defendant.

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Dated:

March 18, 2014

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