El Bey v. Accredited Home Lenders Inc et al
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/30/18 ORDERING that the hearing date of May 9, 2018 on Motion to dismiss is vacated and RECOMMENDING that this action be dismissed with prejudice. F&R referred to District Judge Kimberly J. Mueller. Objections to F&R due within fourteen days. (Kaminski, H)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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HAKEIM EL BEY,
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Plaintiff,
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No. 2:17-cv-02237 KJM CKD (PS)
v.
ORDER &
ACCREDITED HOME LENDERS INC.,
et al,
FINDINGS AND RECOMMENDATIONS
Defendants.
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This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to
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Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On March 9,
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2018, defendant Wells Fargo filed a motion to dismiss.1 The motion was noticed to be heard on
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April 11, 2018.
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On April 2, 2018, because plaintiff had not filed either an opposition or a statement of
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non-opposition to the motion, the undersigned continued the hearing on the motion to May 9,
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2018 and directed plaintiff to file an opposition to the motion, or a statement of non-opposition
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thereto, no later than April 25, 2018. Plaintiff was advised that failure to file an opposition would
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be deemed a statement of non-opposition to the pending motion and would result in a
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recommendation that this action be dismissed. That deadline has passed, the court docket reflects
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On January 31, 2018, the summons was returned unexecuted as to defendant Accredited Home
Lenders Inc., and it does not appear this defendant has been served.
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that plaintiff has not filed an opposition to the motion or a statement of non-opposition to the
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motion.
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The Federal Rules of Civil Procedure provide for dismissal of actions based on lack of
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prosecution. Fed. R. Civ. P. 41(b). Pro se litigants are bound by the rules of procedure, even
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though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567 (9th
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Cir. 1987). In determining whether to dismiss for lack of prosecution, generally the court
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considers (1) the public’s interest in expeditious resolution of litigation, (2) the court’s need to
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manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy favoring
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disposition of cases on their merits, and (5) the availability of less drastic sanctions. See, e.g., Al-
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Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996). The court may dismiss a case sua sponte
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for lack of prosecution by the plaintiff. Hamilton Copper & Steel Corp. v. Primary Steel, Inc.,
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898 F.2d 1428 (9th Cir. 1990). Sua sponte dismissal requires a “close focus” on consideration of
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“less drastic alternatives” and whether or not there has been a “warning of imminent dismissal of
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the case.” Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992).
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In determining that this action will be dismissed, the court has considered all the factors
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set forth in Al-Torki. The first two factors on their face favor the imposition of sanctions in this
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case brought by plaintiff and which has been proceeding forward since plaintiff initiated this
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action on October 25, 2017. See Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990).
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Regarding the third factor, defendant has already briefed its motion to dismiss and would be
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prejudiced by the need for further litigation of this matter despite plaintiff’s non-responsiveness.
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Moreover, delay itself generally is prejudicial--witness memories fade and evidence becomes
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stale or undiscoverable. While the fourth factor favors resolution on the merits, in this case
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plaintiff has declined to oppose the motion to dismiss and thus has precluded the court’s
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evaluation of the potential merits of such an opposition.
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Focusing on the fifth Al-Torki factor and warning regarding imminent dismissal, as
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required by Oliva, the court in its order of April 2, 2018 advised plaintiff that this action is subject
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to dismissal, directed plaintiff to file opposition, and granted additional time to oppose the
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pending motion after plaintiff failed to timely oppose defendants’ motion to dismiss, all to no
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avail. In light of plaintiff’s failures, the court concludes there is no suitable alternative less
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drastic sanction to dismissal. The undersigned will therefore recommend that this action be
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dismissed for failure to prosecute the action and for failure to comply with court orders and Local
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Rules. See Fed. R. Civ. P. 41(b); L.R. 110.
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Accordingly, IT IS HEREBY ORDERED that the hearing date of May 9, 2018 on
defendant’s motion to dismiss is vacated.
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IT IS HEREBY RECOMMENDED that:
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1. This action be dismissed with prejudice; and
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2. The Clerk of Court be directed to close this case.
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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.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: April 30, 2018
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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