Armstrong v. The Bank of New York Mellon

Filing 16

ORDER by Judge Samuel Conti adopting 12 Report and Recommendations and dismissing case. (sclc1, COURT STAFF) (Filed on 10/28/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RONALD S ARMSTRONG,

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) Case No. C 11-4353 SC
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) ORDER DISMISSING CASE
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Plaintiff,

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v.

For the Northern District of California

United States District Court

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THE BANK OF NEW YORK MELLON,
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Defendant.

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On September 1, 2011, Defendant The Bank of New York Mellon

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("Defendant") removed this action from Sonoma County Superior

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Court.

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Defendant moved to dismiss and strike the Complaint, with a noticed

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hearing date of October 20, 2011.

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Plaintiff Ronald S Armstrong ("Plaintiff") failed to file an

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opposition pursuant to Civil Local Rule 7.

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to comply with the magistrate judge’s Order to either consent or

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decline magistrate jurisdiction by September 22, 2011.

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("Order to File Consent/Declination").

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ECF No. 1 ("Not. Of Removal").

On September 8, 2011,

ECF Nos. 5 ("MTD"), 6 ("MTS").

Plaintiff also failed

ECF No. 9

On September 28, 2011, the magistrate judge vacated the

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October 20, 2011 hearing on Defendant's Motion to Dismiss and

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Motion to Strike and ordered Plaintiff to show cause why the case

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should not be dismissed for failure to prosecute and failure to

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comply with court deadlines.

ECF No. 11 ("Order to Show Cause").

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The magistrate judge ordered Plaintiff to file a declaration by

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October 6, 2011.

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2011, the magistrate judge recommended that the Court dismiss the

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case based on Plaintiff's failure to prosecute and repeated failure

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to comply with a court order.

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Recommendation").

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Recommendation, but did file a First Amended Complaint ("FAC") on

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October 17, 2011.

Id.

Plaintiff failed to do so.

On October 14,

ECF No. 14 ("Report and

Plaintiff has not objected to the Report and

ECF No. 15 ("FAC").

United States District Court

Under Rule 41(b) of the Federal Rules of Civil Procedure,

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For the Northern District of California

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"[i]f the Plaintiff fails to prosecute or comply . . . with a court

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order, a defendant may move to dismiss the action or any claim

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against it."

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district court also has the inherent power to dismiss a case on its

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own motion.

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).

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determining whether to dismiss a case for failure to comply with a

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court order the district court must weigh five factors including:

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(1) the public's interest in expeditious resolution of litigation;

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(2) the court's need to manage its docket; (3) the risk of

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prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of

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less drastic alternatives.

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quotations omitted).

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Fed. R. Civ. P. 41(b).

Pursuant to Rule 41, a

Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962);
"In

Ferdik, 963 F.2d at 1261 (citations and

In the instant action, the first two Ferdik factors weigh in

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favor of dismissal.

Plaintiff failed to file an opposition to

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Defendant's pending Motion to Dismiss, failed to comply with a

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court order and deadlines, failed to respond to the Order to Show

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Cause, and, other than filing its FAC, has made no appearance in

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this matter since Defendant removed the Complaint.

The Court has

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the power to manage its docket without being subject to such

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vexatious noncompliance of litigants.

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factor, Plaintiff's tactics have resulted in prejudice to

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Defendant.

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Motion to Dismiss and then, after pertinent deadlines had expired,

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filed a FAC to which Defendants would need to respond.

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fourth factor, Plaintiff's refusal to prosecute the case and comply

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with court orders renders a disposition of the case on the merits

With respect to the third

Plaintiff failed to file an opposition to Defendant's

As to the

United States District Court

For the Northern District of California

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unlikely.

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magistrate judge has already given Plaintiff an opportunity to show

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cause as to why the case should not be dismissed.

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to respond to the Order.

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of dismissal.

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As to the availability of less drastic measures, the

Plaintiff failed

Thus, the Ferdik factors weigh in favor

For these reasons, the Court dismisses Plaintiff Ronald S
Armstrong's action.

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IT IS SO ORDERED.

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Dated: October 28, 2011
UNITED STATES DISTRICT JUDGE

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