Blank v. Wells Fargo Bank

Filing 8

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)

Download PDF
1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 PAUL LOUIS BLANK, 8 Plaintiff, 9 No. 2:16-cv-2422-JAM-CMK vs. ORDER 10 WELLS FARGO BANK, 11 Defendant. 12 / 13 Plaintiff, proceeding pro se, brings this civil action. On May 25, 2017, the court 14 directed plaintiff to file an amended complaint within 30 days. Plaintiff was warned that failure 15 to file an amended complaint may result in dismissal of this action for lack of prosecution and 16 failure to comply with court rules and orders. See Local Rule 110. To date, plaintiff has not 17 complied. 18 In addition, on July 19, 2017, mail directed to plaintiff was returned by the United 19 States Postal Service as undeliverable. Pursuant to Eastern District of California Local Rule 20 183(b), any party appearing pro se must file and serve a notice of change of address within 63 21 days of mail being returned. To date, more than 63 days have elapsed since mail was returned 22 and plaintiff has not notified the court of a change of address. 23 The court must weigh five factors before imposing the harsh sanction of 24 dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 25 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 26 interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) 1 1 the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 2 their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 3 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 4 appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. 5 See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is 6 appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 7 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to 8 comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 9 1260-61 (9th Cir. 1992). 10 Having considered these factors, and in light of plaintiff’s failure to file an 11 amended complaint as directed and failure to file notice of change of address, the undersigned 12 finds that dismissal of this action is appropriate. 13 Based on the foregoing, the undersigned recommends that this action be 14 dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 15 orders. 16 These findings and recommendations are submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court. Responses to objections shall be filed within 14 days after service of 20 objections. Failure to file objections within the specified time may waive the right to appeal. 21 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 24 25 DATED: October 13, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 26 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?