Blank v. Wells Fargo Bank
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/13/17 RECOMMENDING that this action be DISMISSED, without prejudice, for lack of prosecution and failure to comply with court rules and orders. Referred to Judge John A. Mendez; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
PAUL LOUIS BLANK,
WELLS FARGO BANK,
Plaintiff, proceeding pro se, brings this civil action. On May 25, 2017, the court
directed plaintiff to file an amended complaint within 30 days. Plaintiff was warned that failure
to file an amended complaint may result in dismissal of this action for lack of prosecution and
failure to comply with court rules and orders. See Local Rule 110. To date, plaintiff has not
In addition, on July 19, 2017, mail directed to plaintiff was returned by the United
States Postal Service as undeliverable. Pursuant to Eastern District of California Local Rule
183(b), any party appearing pro se must file and serve a notice of change of address within 63
days of mail being returned. To date, more than 63 days have elapsed since mail was returned
and plaintiff has not notified the court of a change of address.
The court must weigh five factors before imposing the harsh sanction of
dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v.
U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's
interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3)
the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on
their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran,
46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an
appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor.
See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is
appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421,
1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to
comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,
1260-61 (9th Cir. 1992).
Having considered these factors, and in light of plaintiff’s failure to file an
amended complaint as directed and failure to file notice of change of address, the undersigned
finds that dismissal of this action is appropriate.
Based on the foregoing, the undersigned recommends that this action be
dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and
These findings and recommendations are submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
after being served with these findings and recommendations, any party may file written
objections with the court. Responses to objections shall be filed within 14 days after service of
objections. Failure to file objections within the specified time may waive the right to appeal.
See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED: October 13, 2017
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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