Park et al v. Bank of America et al

Filing 25

ORDER signed by Judge Lawrence K. Karlton on 4/3/14: This action is dismissed for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUNG MYN PARK, MIN SOOK SUH,

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No.

CIV. S-13-1717 LKK/DAD

Plaintiffs,
v.

ORDER

BANK OF AMERICA; BANK OF
AMERICA, N.A.; BRIAN T.
MOYNIHAN, DAVID C. DARNELL;
GARY G. LYNCH; THOMAS K.
MONTAG and Does 1-XXXX, et
al.,

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Defendants.
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Plaintiffs have once again failed to file an opposition or

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Statement of Non-Opposition in response to defendants’ dismissal

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motion.

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for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).

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For the reasons that follow, this case will be dismissed

Plaintiffs filed their initial complaint in this court on

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August 16, 2013.

Defendants moved to dismiss and noticed a

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hearing on the motion for November 19, 2013.

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failed to respond to the dismissal motion in any way, the court

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issued an Order To Show Cause (“OSC”) why counsel should not be

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sanctioned, and why the case should not be dismissed.
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When plaintiffs

ECF No. 9.

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Plaintiffs’ counsel responded to the OSC by claiming that

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she never received the motion to dismiss.

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docket shows that plaintiffs’ counsel was electronically served.

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The court sanctioned plaintiffs’ counsel and imposed a new

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briefing schedule.

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excuse offered by plaintiffs’ counsel, it reluctantly refrained

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from dismissing the action in order to avoid depriving plaintiffs

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of their day in court “due to their counsel’s errors.”

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No. 13.

ECF No. 12.

The

Although the court was not impressed by the

ECF

However, the court expressly put plaintiffs’ counsel on

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notice “that she must henceforth diligently review her email and

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the electronic docket in this matter, and timely file all

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required documents, as the court will accept no further excuses

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going forward.”

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Id., at 3.

Thereupon, plaintiff timely opposed the then-pending

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dismissal motion.

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to amend the complaint.

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their complaint.

The court dismissed the complaint with leave
ECF No. 17.

Plaintiffs timely amended

ECF No. 19.

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On February 10, 2014, defendants moved to dismiss the First

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Amended Complaint, and noticed a hearing on the motion for March

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17, 2014.

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acknowledged that the dismissal motion had been filed, in a

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“Joint Status Report.”

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Report appears to offer a summary of how plaintiffs would oppose

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the dismissal motion, which was due on March 3, 2014.

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However, plaintiffs never filed any opposition to the dismissal

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motion, nor any Statement of Non-Opposition.

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ECF No. 20.

On February 21, 2014, plaintiffs

ECF No. 22 ¶ (g).

The Joint Status

Id.

Plaintiffs and their counsel have thus failed to comply with
the local rules for a second time, again failing to oppose
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defendant’s dismissal motion, or to file a Statement of Non-

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Opposition.

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heed the court’s express warning that they must, going forward,

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timely file required documents, or suffer dismissal or other

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sanctions.

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the dismissal motion had been filed, and accordingly, their

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failure to respond to it appears to be a willful refusal, or

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inability, to diligently prosecute this case.

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See E.D. Cal. R. 230(c).

They have also failed to

This time around, plaintiffs were plainly aware that

For the foregoing reasons, this action is dismissed for
failure to prosecute pursuant to Fed. R. Civ. P. 41(b).

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IT IS SO ORDERED.

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DATED:

March 4, 2014.

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