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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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 RONALD S ARMSTRONG, 8 ) Case No. C 11-4353 SC ) ) ORDER DISMISSING CASE ) ) ) ) ) ) ) Plaintiff, 9 v. For the Northern District of California United States District Court 10 THE BANK OF NEW YORK MELLON, 11 Defendant. 12 13 14 On September 1, 2011, Defendant The Bank of New York Mellon 15 ("Defendant") removed this action from Sonoma County Superior 16 Court. 17 Defendant moved to dismiss and strike the Complaint, with a noticed 18 hearing date of October 20, 2011. 19 Plaintiff Ronald S Armstrong ("Plaintiff") failed to file an 20 opposition pursuant to Civil Local Rule 7. 21 to comply with the magistrate judge’s Order to either consent or 22 decline magistrate jurisdiction by September 22, 2011. 23 ("Order to File Consent/Declination"). 24 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 25 October 20, 2011 hearing on Defendant's Motion to Dismiss and 26 Motion to Strike and ordered Plaintiff to show cause why the case 27 should not be dismissed for failure to prosecute and failure to 28 comply with court deadlines. ECF No. 11 ("Order to Show Cause"). 1 The magistrate judge ordered Plaintiff to file a declaration by 2 October 6, 2011. 3 2011, the magistrate judge recommended that the Court dismiss the 4 case based on Plaintiff's failure to prosecute and repeated failure 5 to comply with a court order. 6 Recommendation"). 7 Recommendation, but did file a First Amended Complaint ("FAC") on 8 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, 10 For the Northern District of California 9 "[i]f the Plaintiff fails to prosecute or comply . . . with a court 11 order, a defendant may move to dismiss the action or any claim 12 against it." 13 district court also has the inherent power to dismiss a case on its 14 own motion. 15 Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). 16 determining whether to dismiss a case for failure to comply with a 17 court order the district court must weigh five factors including: 18 (1) the public's interest in expeditious resolution of litigation; 19 (2) the court's need to manage its docket; (3) the risk of 20 prejudice to the defendants; (4) the public policy favoring 21 disposition of cases on their merits; and (5) the availability of 22 less drastic alternatives. 23 quotations omitted). 24 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 25 favor of dismissal. Plaintiff failed to file an opposition to 26 Defendant's pending Motion to Dismiss, failed to comply with a 27 court order and deadlines, failed to respond to the Order to Show 28 Cause, and, other than filing its FAC, has made no appearance in 2 1 this matter since Defendant removed the Complaint. The Court has 2 the power to manage its docket without being subject to such 3 vexatious noncompliance of litigants. 4 factor, Plaintiff's tactics have resulted in prejudice to 5 Defendant. 6 Motion to Dismiss and then, after pertinent deadlines had expired, 7 filed a FAC to which Defendants would need to respond. 8 fourth factor, Plaintiff's refusal to prosecute the case and comply 9 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 10 unlikely. 11 magistrate judge has already given Plaintiff an opportunity to show 12 cause as to why the case should not be dismissed. 13 to respond to the Order. 14 of dismissal. 15 16 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. 17 18 IT IS SO ORDERED. 19 20 21 Dated: October 28, 2011 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 3

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