Whittaker v. Reverse Mortgage Solutions et al

Filing 7

ORDER signed by District Judge Kimberly J. Mueller on 6/30/17: This action is DISMISSED without prejudice. The Clerk's Office is instructed to CLOSE the case. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOYCE WHITTAKER,

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No. 2:16-cv-01117-KJM-AC

Plaintiff,
v.

ORDER

REVERSE MORTGAGE SOLUTIONS, et
al.,
Defendants.

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Plaintiff filed a complaint on May 25, 2016, and the case was set for a pretrial

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scheduling conference on September 29, 2016. The court twice vacated and reset the conference

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because the parties did not file the required joint status report. Then on December 1, 2016, the

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court ordered plaintiff to show cause, within fourteen days, why the case should not be dismissed

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for failure to prosecute. Order, ECF No. 6. More than six months later, plaintiff still has not

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responded to the court’s order or otherwise taken action in this case. Defendants also have yet to

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appear. As explained below, the court sua sponte dismisses this case.

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A district court may dismiss an action on its own motion if a plaintiff abandons the

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case or disobeys a court order. See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991);

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992), as amended (May 22, 1992).

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Because dismissal is a harsh sanction, the court must weigh five factors including: “(1) the
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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic alternatives.” Ferdik, 963 F.2d at 1260–61

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(internal citation and quotation marks omitted). These considerations present a district court with

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a way “to think about what to do.” In re Phenylpropanolamine (PPA) Products Liab. Litig., 460

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F.3d 1217, 1226 (9th Cir. 2006) (citation and quotation marks omitted). The decision is one of

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discretion. See id.

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Here, these five factors, taken together, favor dismissal. First, dismissal appears to

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be the only feasible means of expeditiously resolving this litigation, as plaintiff has shown no

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initiative in litigating this case to a resolution. Second, the court’s need to manage its docket

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favors dismissal: The matter has been moldering on this court’s docket for over a year, without

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any progress. Third, the risk of prejudice to the defendants favors dismissal: Defendants are

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inherently prejudiced when a plaintiff inexcusably prolongs litigation. Fourth, while the public

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policy favoring disposition of cases on their merits always weighs against dismissal, evaluation of

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the fifth factor leads the court to conclude no less drastic solution is available at this point, after

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the court has twice rescheduled the status conference and then issued an order to show cause,

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without any beneficial effect. Accordingly, dismissal is appropriate in this case.

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This action is DISMISSED without prejudice.

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The Clerk’s Office is instructed to CLOSE the case.

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IT IS SO ORDERED.

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DATED: June 30, 2017.

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UNITED STATES DISTRICT JUDGE

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