Pascual, et al. v. Select Portfolio Servicing, Inc., et al.
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 7/7/2015 RECOMMENDING that Plaintiff's 2/3/2015 complaint be dismissed without prejudice. Referred to Judge Kimberly J. Mueller. Objections to F&R due within 14 days. (Zignago, K.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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REGINALD PASCUAL and ANGELICA
PASCUAL,
Plaintiffs,
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FINDINGS AND RECOMMENDATIONS
v.
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No. 2:15-cv-0907 KJM DAD PS
SELECT PORTFOLIO SERVICING,
INC., and NATIONAL DEFAULT
SERVICING CORPORATION,
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Defendants.
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This matter came before the court on June 5, 2015, for hearing of defendants’ motion to
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dismiss. Attorney Bao Vu appeared telephonically for the defendants. Despite being served with
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notice of the motion neither plaintiff filed a written opposition nor did they file a statement of
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non-opposition to defendants’ motion to dismiss. Moreover, neither plaintiff appeared at the
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hearing of the motion, nor did anyone appear on behalf of either plaintiff.
Accordingly, on June 9, 2015, the undersigned issued an order to show cause in writing
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within fourteen days as to why this action should not be dismissed for lack of prosecution. (Dkt.
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No. 10.) Plaintiffs were cautioned that failure to file a written response to that order would result
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in the undersigned recommending that this matter be dismissed. (Id.) Nonetheless, the time for
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plaintiffs to respond has expired and neither plaintiff has responded to the court’s order in any
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way.
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ANALYSIS
The factors to be weighed in determining whether to dismiss a case for lack of prosecution
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are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need
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to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring
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disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of
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El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.
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1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that
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should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d
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at 1260.
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Failure of a party to comply with the any order of the court “may be grounds for
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imposition by the Court of any and all sanctions authorized by statute or Rule or within the
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inherent power of the Court.” Local Rule 110. Any individual representing himself or herself
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without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local
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Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable
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rules and law may be grounds for dismissal or any other sanction appropriate under the Local
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Rules. Id.
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Here, plaintiffs have failed to file a timely response to defendants’ motion to dismiss and
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failed to appear at the hearing of the properly noticed motion, in violation of multiple provisions
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of Local Rule 230. Moreover, the court issued an order to show cause that provided plaintiffs
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with yet another opportunity to show good cause for their failure to respond to defendants’
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motion but plaintiffs failed to respond to that order in any way. The order to show cause
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specifically warned plaintiffs that the failure to file a written response to that order would result in
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a recommendation that this matter be dismissed.
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Plaintiffs’ lack of prosecution of this case renders the imposition of monetary sanctions
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futile. Moreover, the public interest in expeditious resolution of litigation, the court’s need to
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manage its docket, and the risk of prejudice to the defendants all support the imposition of the
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sanction of dismissal. Only the public policy favoring disposition on the merits counsels against
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dismissal. However, plaintiffs’ failure to prosecute the action in any way makes disposition on
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the merits an impossibility. The undersigned will therefore recommend that this action be
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dismissed due to plaintiffs’ failure to prosecute as well as their failure to comply with the court’s
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orders. See FED. R. CIV. P. 41(b).
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Accordingly, IT IS HEREBY RECOMMENDED that plaintiffs’ February 3, 2015
complaint (Dkt. No. 1-3) be dismissed without prejudice.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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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 reply to the objections
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shall be served and filed within seven days after service of the objections. The parties are advised
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that failure to file objections within the specified time may waive the right to appeal the District
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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: July 7, 2015
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DAD:6
Ddad1\orders.pro se\pascual0907.dlop.f&rs.docx
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