Laygo et al v. World Savings Bank et al

Filing 11

ORDER that case be reassigned to a district court judge; REPORT AND RECOMMENDATION. The March 28, 2013 show cause hearing is VACATED. Signed by Magistrate Judge Laurel Beeler on 3/27/2013. (lblc2, COURT STAFF) (Filed on 3/27/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
ANDREA C. LAYGO et al,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Plaintiffs,
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v.

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No. C 12-05531 LB
ORDER THAT CASE BE
REASSIGNED TO A DISTRICT
COURT JUDGE
REPORT AND RECOMMENDATION

WORLD SAVINGS BANK et al,
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[Re: ECF No. 1]
Defendants
_____________________________________/

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Plaintiffs Andrea C. Laygo, Teresito M. Laygo, and Teresito Joselito Catalan (collectively,

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“Plaintiffs”) filed a complaint against Defendants World Savings Bank and Golden West Savings

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Association Service Company (collectively, “Defendants”) on October 26, 2012. Complaint, ECF

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No. 1 at 1.1 This means that, pursuant to the Federal Rule of Civil Procedure 4(m), Plaintiffs had

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until February 23, 2013 to serve Defendants. Fed. R. Civ. P. 4(m); see also Order to Show Cause,

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ECF No. 9 at 1. To date, Plaintiffs have filed no proof that Defendants have been served. See

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generally Docket. Because Plaintiffs had not filed any proof that Defendants had been served, on

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March 5, 2013, the court ordered Plaintiffs to show cause, by filing a written response by March 21,

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2013, why this case should not be dismissed without prejudice for failure to prosecute. Order to

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Show Cause, ECF No. 9 at 1. To date, Plaintiffs have filed nothing. See generally Docket.

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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 12-05531 LB
ORDER

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

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failure to prosecute or failure to comply with a court order, the court weighs the following factors: (1)

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

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

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(5) the public policy favoring disposition of cases on their merits. Pagtalunan v. Galaza, 291 F.3d

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639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61); Ghazali v. Moran, 46 F.3d 52, 53 (9th

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Cir. 1995). These factors are a guide and “are ‘not a series of conditions precedent before the judge

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can do anything.’” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217,

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1226 (9th Cir. 2006) (quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir.

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1998)). Dismissal is appropriate “where at least four factors support dismissal, . . . . or where at least

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For the Northern District of California

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

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UNITED STATES DISTRICT COURT

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three factors ‘strongly’ support dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th

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Cir. 1998) (quoting Ferdik, 963 F.2d at 1263).

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Here, four factors favor dismissal. There is nothing in the record indicating that any Defendants

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have been served, and Plaintiffs failed to file a written response to the court’s order to show cause.

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This certainly is not “expeditious litigation,” and the court must keep the cases on its docket moving.

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In addition, there is no risk of prejudice to Defendants, and the court already tried to move this case

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along by issuing an order that clearly explained to Plaintiffs that they must file proof of service and

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provided Plaintiffs an opportunity to show cause for failing to serve Defendants.

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In sum, the court concludes that four of the five relevant factors weigh in favor of dismissal.

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Because no party has consented to or declined the undersigned’s jurisdiction, the court ORDERS the

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Clerk to the Court to reassign this action to a district court judge. The court RECOMMENDS that

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the newly-assigned district court judge dismiss this action without prejudice for failure to prosecute.

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The March 28, 2013 show cause hearing is VACATED.

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Any party may file objections to this Report and Recommendation with the district judge within

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fourteen days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); N.D.

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Cal. Civ. L.R. 72. Failure to file an objection may waive the right to review of the issue in the

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district court.

C 12-05531 LB
ORDER

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IT IS SO ORDERED.
Dated: March 27, 2013
_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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C 12-05531 LB
ORDER

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