Palmer et al v. Countrywide et al

Filing 12

REFERRAL FOR REASSIGNMENT WITH RECOMMENDATION TO DISMISS. Signed by Judge Nathanael M. Cousins on 06/18/2012. (nclc2, COURT STAFF) (Filed on 6/18/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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RANDY PALMER and YOLANDA
PALMER,

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Plaintiffs,

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v.

Case No. 12-cv-01332 NC
REFERRAL FOR
REASSIGNMENT WITH
RECOMMENDATION TO
DISMISS WITH PREJUDICE

COUNTRYWIDE, BANK OF
AMERICA, N.A.,
Defendant.

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Plaintiffs Randy Palmer and Yolanda Palmer bring this action against defendant

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Countrywide, Bank of America, N.A., asserting various state law claims in connection

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with foreclosure proceedings on plaintiffs’ residence. Bank of America removed this

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action to federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332.

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Plaintiffs have not consented to jurisdiction of a magistrate judge under 28 U.S.C.

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§ 636(a). This Court therefore lacks the authority to make a dispositive ruling in this

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case and orders that the case be REASSIGNED to a District Court Judge.

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As plaintiffs have failed to prosecute this action or comply with Court orders, and

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as this Court previously warned plaintiffs that failure to prosecute would result in case

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dismissal, the Court RECOMMENDS that the District Court dismiss this action with

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prejudice under Federal Rule of Civil Procedure 41(b).

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//
Case No. 12-cv-01332 NC
REFERRAL FOR REASSIGNMENT
WITH RECOMMENDATION TO DISMISS

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I. BACKGROUND

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On February 8, 2012, plaintiffs Randy Palmer and Yolanda Palmer filed this

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action against defendant Countrywide, Bank of America N.A., alleging various causes of

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action arising out of a foreclosure proceeding on their residence. Not. Removal, Ex. A,

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Dkt. No. 1. Specifically, plaintiffs assert state law causes of action, including breach of

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implied contract, fraud, and intentional misrepresentation, against Bank of America

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based on a notice of default issued on plaintiffs’ residence. See id. Plaintiffs seek

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injunctive relief, monetary, including punitive damages, and attorney’s fees and costs.

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See id.

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On March 16, 2012, defendant Bank of America removed this action to federal

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court. See id. After consenting to jurisdiction of a magistrate judge under 28 U.S.C. §

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636(c), Bank of America moved to dismiss plaintiffs’ complaint under Federal Rule of

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Civil Procedure 12(b)(6). Def.’s Mot. Dismiss, Dkt. No. 6.1
Under Civil Local Rule 7-3, plaintiffs’ opposition or statement of non-opposition

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to the motion to dismiss was due no later than 14 days after the motion was served and

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filed, i.e., on or before April 3, 2012. See Civil L.R. 7-3(a)-(b). Plaintiffs failed to file

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an opposition or statement of non-opposition to the motion to dismiss. The Court also

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held a hearing on the motion to dismiss on May 2, 2012. See Min. Order, Dkt. No. 10.

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Plaintiffs also failed to appear at the hearing. See id.

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On April 30, 2012, the Court received a document entitled First Amended

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Complaint for Damages. See Dkt. No. 9. The Court rejected plaintiffs’ deficient filing

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as plaintiffs failed to seek leave to file an amended complaint; plaintiffs’ counsel failed

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to sign the amended complaint; and the complaint was captioned to the incorrect court.

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See Order Granting Mot. Dismiss, Dkt. No. 11.
In its order granting Bank of America’s motion to dismiss, the Court provided

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To date, plaintiffs have failed to consent or decline to the jurisdiction of a
magistrate judge under 28 U.S.C. § 636. See 28 U.S.C. § 636; see also Civil L.R. 73-1.
Case No. 12-cv-01332 NC
REFERRAL FOR REASSIGNMENT
WITH RECOMMENDATION TO DISMISS

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plaintiffs 14 days from the filing date of the order, or May 16, 2012, to seek leave to file

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an amended complaint. See Order Granting Mot. Dismiss at 3. The Court advised

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plaintiffs that failure to seek leave to file an amended complaint within the prescribed

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time period would result in recommendation that the case be dismissed with prejudice.

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See id.
II. DISCUSSION

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Rule 41(b) provides, in part: “[I]f the plaintiff fails to prosecute or to comply with

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

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against it.” FED. R. CIV. P. 41(b). A district court may dismiss an action sua sponte

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under Federal Rule of Civil Procedure 41(b). Hells Canyon Preservation Council v. U.S.

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Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that a district court may

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dismiss an action under Rule 41(b) sua sponte for a plaintiff’s failure to prosecute or

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comply with a court order).

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Before dismissing an action for failure to prosecute or comply with a court order,

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a court must weigh the following factors: (1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice

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to defendants; (4) the availability of less drastic alternatives; and (5) the public policy

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favoring disposition of cases on their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642

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(9th Cir. 2002).

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Here, the first two factors strongly support dismissal of this action. Plaintiffs’

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failure to file an opposition to defendant’s motion to dismiss, and plaintiffs’ failure to

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seek leave to file an amended complaint after being granted additional time to do so,

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suggest that plaintiffs are not actively pursuing this litigation. See, e.g., Yourish v. Cal.

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Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious

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resolution of litigation always favors dismissal.”). In addition, plaintiffs had notice of

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the May 2, 2012 motion to dismiss hearing and failed to appear. Min. Order, Dkt. No.

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10. Any further time spent by the court on this case, which plaintiffs have demonstrated

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a lack of intention to prosecute, will needlessly consume judicial resources. See
Case No. 12-cv-01332 NC
REFERRAL FOR REASSIGNMENT
WITH RECOMMENDATION TO DISMISS

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Pagtalunan, 291 F.3d at 642 (“It is incumbent upon the Court to manage its docket

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without being subject to routine noncompliance of litigants”); see also Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (recognizing that district courts have

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inherent power to manage their dockets without being subject to noncompliant litigants).

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The third factor, which considers prejudice to the defendants as a result of

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plaintiffs’ inaction, favors dismissal. See id. Plaintiffs’ failure to file an opposition to

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the motion to dismiss, and failure to communicate with the court regarding their

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non-participation in this litigation, raises the real possibility that the defendants in this

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action will be forced to engage in further litigation against claims that plaintiffs are not

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actively pursuing. Such prejudice to a defendant weighs strongly in favor of dismissal.

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See Yourish, 191 F.3d at 991.

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The fifth factor, which considers the availability of less drastic measures, also

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supports dismissal of this action. As noted above, the court previously pursued remedies

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less drastic than a recommendation of dismissal. See Malone v. U.S. Postal Serv., 833

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F.2d 128, 132 (9th Cir. 1987). In its order granting Bank of America’s motion to

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dismiss, the Court also warned plaintiffs that failure to seek leave to file an amended

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complaint would result in a recommendation of dismissal with prejudice. Warning a

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plaintiff that failure to take steps towards resolution of her action on the merits will result

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in dismissal satisfies the requirement that the court consider the alternatives. See, e.g.,

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Ferdik, 963 F.2d at 1262 (“[O]ur decisions also suggest that a district court’s warning to

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a party that his failure to obey the court’s order will result in dismissal can satisfy the

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‘consideration of alternatives’ requirement.”) (citations omitted). Here, the court finds

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no suitable alternative to a recommendation for dismissal of this action.

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The fourth factor favoring disposition of cases on the merits, by definition,

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weighs against dismissal. Pagtalunan, 291 F.3d at 643 (“Public policy favors

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disposition of cases on the merits. Thus, this factor weighs against dismissal”).

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As factors one, two, three, and five strongly support a recommendation of
dismissal of this action, the Court finds these relevant factors outweigh the general
Case No. 12-cv-01332 NC
REFERRAL FOR REASSIGNMENT
WITH RECOMMENDATION TO DISMISS

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public policy favoring disposition of actions on their merits. See Ferdik, 963 F.2d at

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1263; see also Pagtalunan, 291 F.3d at 643 (affirming dismissal where three factors

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favored dismissal, while two factors weighed against dismissal).
III. CONCLUSION

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The Court concludes that four of the five relevant factors weigh strongly in favor

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of dismissing this action in its entirety. Accordingly, the Court recommends this case be

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dismissed with prejudice. The parties may object to this recommendation within

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fourteen days of the filing date. FED. R. CIV. P. 72(a); Civil L.R. 72-2.

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IT IS SO ORDERED.

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DATED: June 18, 2012

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___________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 12-cv-01332 NC
REFERRAL FOR REASSIGNMENT
WITH RECOMMENDATION TO DISMISS

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