Villalta v. Bank of America Corporation
ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION; DISMISSING COMPLAINT WITH PREJUDICE. Signed by Judge Maxine M. Chesney on January 2, 2013. (mmclc2, COURT STAFF) (Filed on 1/2/2013)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
For the Northern District of California
United States District Court
No. C 12-4717 MMC
ORDER ADOPTING MAGISTRATE
DISMISSING COMPLAINT WITH
BANK OF AMERICA CORP.,
Before the Court is Magistrate Judge Maria-Elena James’s Report and
Recommendation, filed December 3, 2012, by which said Magistrate Judge recommends
the above-titled action be dismissed. As plaintiff Cisco Villalta was served by mail with the
Report and Recommendation on December 3, 2012, any objections thereto were required
to be filed no later than December 20, 2012. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
6(a), (d). To date, no objection has been filed.
Having read and considered the Report and Recommendation and having
considered the procedural history of the above-titled action, the Court hereby ADOPTS the
In so ruling, the Court has weighed the five factors identified by the Ninth Circuit as
particularly relevant to the question of dismissal for failure to prosecute and to comply with
court orders.1 In that regard, the Court finds the only factor weighing against dismissal is
the fourth factor. The first three factors, given plaintiff’s complete lack of responsiveness to
court orders and the absence of any filing by plaintiff following removal of the action in early
September 2012,2 weigh strongly in favor of dismissal. The fifth factor likewise weighs in
favor of dismissal, for the reason that monetary sanctions do not appear appropriate given
the nature of the case (see Compl. ¶¶ 9-11 (alleging claims based on insufficient funds in
checking account)) as well as plaintiff’s history of nonresponsiveness to Court directives.
Lastly, other possible forms of sanctions have proved ineffective (see Amended Order to
Show Cause, filed November 14, 2012 (warning plaintiff his failure to respond thereto could
result in dismissal)); In re Phenylpropanolamine Products Liab. Litig., 460 F.3d 1217, 1229
(9th Cir. 2006) (noting “[w]arning that failure to obey a court order will result in dismissal
can itself meet the ‘consideration of alternatives’ requirement”); cf. Ready Transp., Inc. v.
AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (acknowledging district court may strike
exhibits from docket as sanction).
Accordingly, the above-titled action is hereby DISMISSED with prejudice for failure
to prosecute and to comply with court orders.
IT IS SO ORDERED.
Dated: January 2, 2013
MAXINE M. CHESNEY
United States District Judge
The five factors are “(1) the public’s interest in expeditious resolution of litigation;
(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the
public policy favoring disposition of cases on their merits and (5) the availability of less
drastic sanctions.” See Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); Ferdik
v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (same).
The record before this Court does not reflect whether plaintiff filed any documents
in the case between the filing of the complaint and removal.
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