Giovanni v. Bank of America, National Association

Filing 46

ORDER dismissing case. Plaintiff did not file an amended complaint. The clerk of the court shall close the file. (Beeler, Laurel) (Filed on 5/22/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
KATHERYN GIOVANNI,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Plaintiff,
v.

No. C 12-2530 LB
ORDER DISMISSING WITHOUT
PREJUDICE PLAINTIFF’S ACTION

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BANK OF AMERICA, NATIONAL
ASSOCIATION, an FDIC insured corporation
and DOES 1 through 100, inclusive,

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Defendants.
_____________________________________/
Plaintiff brought this lawsuit against Bank of America, N.A. (“BOA”) for claims arising out of

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Bank of America’s informing credit reporting agencies that she had overdue payments on her credit

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account. See generally Complaint, ECF No. 1.1 On April 17, 2013, the court granted BOA’s motion

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and dismissed some claims in Plaintiff’s second amended complaint with prejudice and some

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without prejudice and with leave to amend within 21 days, or by May 8, 2013. 4/17/2013 Order,

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ECF No. 45 at 4.

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To date, Plaintiff has not filed an amended complaint, and the court has received no further
indication that she intends to prosecute this action. See generally Docket.

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A court may dismiss an action based on a party’s failure to prosecute an action. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). In determining whether to dismiss a claim for

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Citations are to the Electronic Case File (“ECF”), with pin cites to the electronicallygenerated page numbers at the top of the document.
C 12-02530 LB
ORDER

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failure to prosecute or failure to comply with a court order, the court weighs the following factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its

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docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic

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alternatives; and (5) the public policy favoring disposition of cases on their merits. Pagtalunan v.

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Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61); Ghazali v. Moran,

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46 F.3d 52, 53 (9th Cir. 1995). These factors are a guide and “are ‘not a series of conditions

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precedent before the judge can do anything.’” In re Phenylpropanolamine (PPA) Products Liability

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Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158

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F.3d 1051, 1057 (9th Cir. 1998)). Dismissal is appropriate “where at least four factors support
dismissal, . . . or where at least three factors ‘strongly’ support dismissal.” Hernandez v. City of El

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Monte, 138 F.3d 393, 399 (9th Cir. 1998) (quoting Ferdik, 963 F.2d at 1263).

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Here, four factors support dismissal. Plaintiff has not filed an amended complaint, even though

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it is past the court’s deadline for doing so. This certainly is not “expeditious litigation,” and the

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court must keep the cases on its docket moving. There also is no risk of prejudice to the Defendant.

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Finally, the court already tried to move this case along by issuing an order that clearly explained to

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Plaintiff the deficiencies in her complaint, and gave her leave to file an amended complaint that

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corrects those deficiencies.

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In sum, the court concludes that at least four of the five relevant factors weigh in favor of

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dismissal. Accordingly, the court DISMISSES WITHOUT PREJUDICE Plaintiff’s action for

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failure to prosecute. The Clerk of the Court shall close the file.

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IT IS SO ORDERED.
Dated: May 22, 2013

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_______________________________
LAUREL BEELER
United States Magistrate Judge

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C 12-02530 LB
ORDER

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