Homsy v. Bank of America, N.A. et al

Filing 31

ORDER Dismissing Action for Failure to Prosecute. Signed by Judge Laurel Beeler on 7/3/2013. (lblc1S, COURT STAFF) (Filed on 7/3/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
GEORGE HOMSY,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 13-01608 LB
Plaintiff,

v.

ORDER DISMISSING ACTION FOR
FAILURE TO PROSECUTE

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BANK OF AMERICA, N.A., fka
COUNTRYWIDE HOME LOANS;
RESIDENTIAL CREDIT SOLUTIONS;
RECONSTRUST COMPANY, N.A.; and
DOES 1 through 50 inclusive,

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Defendants.
_____________________________________/
Plaintiff George Homsy sued Defendants Bank of America, N.A., fka Countrywide Home Loans

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(“BOA”), Residential Credit Solutions (“RCS”), and Recontrust Company, N.A. (“Recontrust”)

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(collectively, “Defendants”) for violation of federal and state law in connection with pending

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foreclosure proceedings against his property in San Francisco, California. Complaint, ECF No. 1 at

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12.1 All three Defendants moved to dismiss the complaint. See Motion (BOA and Recontrust), ECF

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No. 6; Motion (RCS), ECF No. 9.

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On June 3, 2013, the court dismissed Mr. Homsy’s sole federal claim with prejudice, declined to

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retain jurisdiction over the remaining state claims, and dismissed them without prejudice. See

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Order, ECF No. 28 at 10-11. The court stated:

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Citations are to the Electronic Case File (“ECF”) with pin cites to the page number at the
top of the page.
C 13-01608 LB
ORDER

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Should Mr. Homsy decide to file an amended complaint that establishes a basis for federal
jurisdiction, he shall file it within 21 days. If Mr. Homsy does not file an amended complaint
within 21 days, the court may close the case without further notice.
Id. at 11.
To date, Mr. Homsy has not filed an amended complaint, and the court has received no further
indication that he 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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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

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

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For the Northern District of California

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

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UNITED STATES DISTRICT COURT

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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

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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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Here, four factors support dismissal. Mr. Homsy has not filed an amended complaint, even

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

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

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

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explained to Mr. Homsy the deficiencies in his complaint, and gave him leave to file an amended

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complaint that corrects those deficiencies.

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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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Accordingly, the court DISMISSES WITHOUT PREJUDICE Mr. Homsy’s action for failure to

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C 13-01608 LB
ORDER

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prosecute.2 The Clerk of the Court shall close the file.
IT IS SO ORDERED.
Dated: July 3, 2013

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_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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The court notes that Defendants BOA and Recontrust filed a motion to dismiss Mr.
Homsey’s action on July 2, 2013. ECF No. 29. In light of the court’s previous warning and the
court’s decision now, Defendants’ motion is moot.
C 13-01608 LB
ORDER

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