Villalta v. Bank of America Corporation

Filing 18

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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

For the Northern District of California

United States District Court

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No. C 12-4717 MMC

CISCO VILLALTA,

ORDER ADOPTING MAGISTRATE
JUDGE’S RECOMMENDATION;
DISMISSING COMPLAINT WITH
PREJUDICE

Plaintiff,
v.
BANK OF AMERICA CORP.,
Defendant.

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Before the Court is Magistrate Judge Maria-Elena James’s Report and

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Recommendation, filed December 3, 2012, by which said Magistrate Judge recommends

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the above-titled action be dismissed. As plaintiff Cisco Villalta was served by mail with the

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Report and Recommendation on December 3, 2012, any objections thereto were required

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to be filed no later than December 20, 2012. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

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6(a), (d). To date, no objection has been filed.

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Having read and considered the Report and Recommendation and having

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considered the procedural history of the above-titled action, the Court hereby ADOPTS the

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Recommendation.

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In so ruling, the Court has weighed the five factors identified by the Ninth Circuit as

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particularly relevant to the question of dismissal for failure to prosecute and to comply with

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court orders.1 In that regard, the Court finds the only factor weighing against dismissal is

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the fourth factor. The first three factors, given plaintiff’s complete lack of responsiveness to

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court orders and the absence of any filing by plaintiff following removal of the action in early

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September 2012,2 weigh strongly in favor of dismissal. The fifth factor likewise weighs in

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favor of dismissal, for the reason that monetary sanctions do not appear appropriate given

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the nature of the case (see Compl. ¶¶ 9-11 (alleging claims based on insufficient funds in

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checking account)) as well as plaintiff’s history of nonresponsiveness to Court directives.

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Lastly, other possible forms of sanctions have proved ineffective (see Amended Order to

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Show Cause, filed November 14, 2012 (warning plaintiff his failure to respond thereto could

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result in dismissal)); In re Phenylpropanolamine Products Liab. Litig., 460 F.3d 1217, 1229

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(9th Cir. 2006) (noting “[w]arning that failure to obey a court order will result in dismissal

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can itself meet the ‘consideration of alternatives’ requirement”); cf. Ready Transp., Inc. v.

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AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (acknowledging district court may strike

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exhibits from docket as sanction).

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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

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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).
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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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