Gomez v. Nationstar Mortgage, LLC et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/30/18 ORDERING that the 12/07/18 Status Conference is VACATED; RECOMMENDING that the Complaint be dismissed without prejudice and action closed. Referred to Judge John A. Mendez; Objections due with 14 days. (Benson, A.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ELIZABETH GOMEZ, an individual,
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No. 2:18-cv-1080 JAM DB PS
Plaintiff,
v.
ORDER AND
FINDINGS AND RECOMMENDATIONS
NATIONSTAR MORTGAGE, LLC, a
Delaware Limited Liability Company;
QUALITY LOAN SERVICE
CORPORATION, a California
Corporation; and DOES 1-100,
INCLUSIVE,
Defendants.
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Plaintiff, Elizabeth Gomez, is proceeding in this action pro se. This matter was referred to
the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
On October 11, 2018, the undersigned issued an order setting this matter for a status
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conference on November 16, 2018. (ECF No. 16.) Pursuant to the order plaintiff was to file a
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status report on or before November 2, 2018. (Id. at 2.) The order warned plaintiff that the
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failure to file a status report could result in a sanction. (Id. at 3.) Plaintiff, however, failed to file
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a timely status report.
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Accordingly, on November 9, 2018, the undersigned issued to plaintiff an order to show
cause. (ECF No. 19.) Specifically, plaintiff was ordered to show cause in writing within fourteen
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days as to why this case should not be dismissed for lack of prosecution. (Id. at 2.) The status
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conference was also continued to December 7, 2018, and plaintiff was ordered to file a status
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report on or before November 23, 2018. (Id.) Plaintiff was warned that the “failure to timely
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comply” with that order “may result in a recommendation that this action be dismissed for lack of
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prosecution[.]” (Id. at 3.) Again, however, plaintiff failed to respond to the court’s order.
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ANALYSIS
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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 to
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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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Here, plaintiff has repeatedly failed to file a status report. And plaintiff has repeatedly
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failed to respond to the orders of this court. Plaintiff was warned that the failure to file a written
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response to the court’s order could result in a recommendation that this matter be dismissed.
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Plaintiff, nonetheless, failed to respond to the court’s order.
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Plaintiff’s lack of prosecution of this case renders the imposition of monetary sanctions
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futile. Moreover, the public interest in expeditious resolution of litigation, the court’s need to
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manage its docket, and the risk of prejudice to the defendant all support the imposition of the
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sanction of dismissal. Only the public policy favoring disposition on the merits counsels against
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dismissal. However, plaintiff’s failure to prosecute the action in any way makes disposition on
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the merits an impossibility. The undersigned will therefore recommend that this action be
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dismissed due to plaintiff’s failure to prosecute as well as plaintiff’s failure to comply with the
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court’s orders. See Fed. R. Civ. P. 41(b).
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Accordingly, IT IS HEREBY ORDERED that the December 7, 2018 Status Conference is
vacated.
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Also, IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s March 29, 2018 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: November 30, 2018
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DLB:6
DB\orders\orders.pro se\gomes1080.dlop.f&rs
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