Bochene v. MFRA Trust 2014-2, MF Residential Accets, LLC, et al
Filing
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ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/25/18 VACATING the 11/2/18 Status (Pretrial Scheduling) Conference and RECOMMENDING that: 1) Plaintiff's 3/6/17 Complaint, 1 -1 be dismissed without prejudice; and 2) This action be closed. These Findings and Recommendations are submitted to U.S District Judge Troy L. Nunley. Objections to these Findings and Recommendations due within fourteen days. (Mena-Sanchez, L)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANTHONY BOCHENE,
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Plaintiff,
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No. 2:17-cv-0768 TLN DB PS
v.
ORDER AND
FINDINGS AND RECOMMENDATIONS
MFRA TRUST 2014-2,
MFRESIDENTIALASSETS, LLC AS
ADMINISTRATOR, et al.,
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Defendants.
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Plaintiff Anthony Bochene is proceeding in this action pro se. This matter was referred to
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the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
On July 13, 2018, the undersigned issued an order setting this matter for a status
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conference on August 24, 2018. (ECF No. 40.) Pursuant to the order plaintiff was to file a status
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report on or before August 10, 2018. (Id. at 2.) Plaintiff, however, failed to file a timely status
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report.
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Accordingly, on August 17, 2018, the undersigned issued an order to show cause as to
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why this action should not be dismissed due to plaintiff’s lack of prosecution. (ECF No. 41.)
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That order also continued the August 24, 2018 status conference to October 5, 2018, and ordered
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plaintiff to file a status report on or before September 21, 2018. On September 4, 2018, plaintiff
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filed a letter apologizing for failing to file a timely status report on or before August 10, 2018.
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(ECF No. 45.) Despite this apology, plaintiff again failed to file a timely status report on or
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before September 21, 2018.
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Accordingly, on October 3, 2018, the undersigned issued yet another order to show cause
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to plaintiff. (ECF No. 47.) That order continued the October 5, 2018 status conference to
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November 2, 2018, and ordered plaintiff to file a timely status report on or before October 19,
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2018. (Id. at 2-3.) The order also, again, warned plaintiff that a failure to comply could result in
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the recommendation that this action be dismissed for lack of prosecution. (Id. at 3.) Despite that
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warning, plaintiff has again failed to file a timely status report and has failed to respond to the
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October 3, 2018 order to show cause.
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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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As explained above, plaintiff has repeatedly failed to prosecute this matter and has failed
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to respond to the undersigned’s order to show cause. Plaintiff’s lack of prosecution of this case
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renders the imposition of monetary sanctions futile. Moreover, the public interest in expeditious
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resolution of litigation, the court’s need to manage its docket, and the risk of prejudice to the
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defendant all support the imposition of the sanction of dismissal. Only the public policy favoring
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disposition on the merits counsels against dismissal. However, plaintiff’s failure to prosecute the
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action in any way makes disposition on the merits an impossibility. The undersigned will
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therefore recommend that this action be dismissed due to plaintiff’s failure to prosecute as well as
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plaintiff’s failure to comply with the court’s orders. See Fed. R. Civ. P. 41(b).
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Accordingly, IT IS HEREBY ORDERED that the November 2, 2018 Status (Pretrial
Scheduling) Conference is vacated.
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Also, IT IS HEREBY RECOMMENDED that:
1) Plaintiff’s March 6, 2017 complaint, (ECF No. 1-1) be dismissed without prejudice;
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and
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2) This action be closed.
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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 fourteen days after service of the objections. The parties are
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advised that failure to file objections within the specified time may waive the right to appeal the
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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: October 25, 2018
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DLB:6
DB\orders\orders.pro se\bochene0768.dlop.f&rs
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