Cotter v. JP Morgan Chase Bank et al

Filing 30

ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE. Signed by Judge Maria-Elena James on 9/11/2015. (cdnS, COURT STAFF) (Filed on 9/11/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CYNTHIA COTTER,

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Case No. 15-cv-01802-MEJ

Plaintiff,
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ORDER DISMISSING CASE FOR
FAILURE TO PROSECUTE

v.
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JP MORGAN CHASE BANK, et al.,

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Defendants.

United States District Court
Northern District of California

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INTRODUCTION

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Since filing this case in March 2015, Plaintiff Cynthia Cotter (“Plaintiff”) has repeatedly

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failed to comply with Court orders and deadlines. For the reasons set forth below, the Court finds

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it appropriate to dismiss this case pursuant to Federal Rule of Civil Procedure 41(b) for failure to

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prosecute.1

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BACKGROUND

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On March 7, 2007, Plaintiff executed a promissory note, promising to pay Defendant

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SBMC Mortgage the principal amount of $440,000.00, plus interest. The Note was secured by a

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Deed of Trust encumbering the real property located at 3325 San Leandro Street, Oakland,

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California 94601. After Plaintiff defaulted on her loan payments, Defendant JPMorgan Chase

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Bank, N.A. initiated non-judicial foreclosure proceedings and subsequently sold the property at a

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trustee’s sale on January 17, 2015. On March 19, 2015, Plaintiff initiated this action by filing a

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Complaint in Alameda County Superior Court. Dkt. No. 1. Defendants removed the case to this

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All parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). Therefore, the undersigned may exercise jurisdiction to conduct all proceedings
in this matter.

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Court on April 21, 2015. Id.
After Defendants moved to dismiss Plaintiff’s Complaint, the Court referred the case to the

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ADR Unit for a telephone conference to assess the case’s suitability for mediation. Dkt. No. 9.

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The parties were instructed to participate in a telephone conference by May 26, 2015 and be

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prepared to discuss prospects for loan modification and settlement. Id. Although the ADR Unit

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scheduled a phone conference to take place on May 11, 2015 (Dkt. No. 10), Plaintiff did not

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appear and did not otherwise contact the ADR Unit or the Court to explain her absence.

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Accordingly, the Court ordered Plaintiff to show cause why her case should not be dismissed for

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failure to prosecute. Dkt. No. 15.

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Plaintiff did not respond to the Order to Show Cause, but instead filed an Opposition to

United States District Court
Northern District of California

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Defendants’ pending Motions to Dismiss. Dkt. No. 17. The Court then referred the parties back

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to the ADR Unit for the telephonic conference. Dkt. No. 18. After Plaintiff appeared for an initial

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phone conference on July 14, 2015, she failed to appear for a follow up conference on August 12.

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Based on the ADR Unit’s recommendation, the Court set the matter for a Case Management

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Conference on September 3, 2015, and ordered the parties to file a joint status report by August

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27. Dkt. No. 23. Although Defendants filed a separate report, they stated that Plaintiff failed to

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respond to repeated attempts to obtain her input in completing a joint report. Dkt. No. 25. The

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Court issued a Second Order to Show Cause, directing Plaintiff to show cause by September 8,

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2015 as to why this case should not be dismissed for failure to prosecute and warning her that the

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Court would dismiss the case if she failed to file a response by September 8. Dkt. No. 26. As of

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the date of this Order, no response has been received.

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LEGAL STANDARD
Under Rule 41(b), “the district court may dismiss an action for failure to comply with any

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order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); see also Oliva v.

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Sullivan, 958 F.2d 272, 273-74 (9th Cir. 1992) (district court may dismiss sua sponte for failure to

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meet court deadline). “[T]he district court must weigh the following factors in determining

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whether a Rule 41(b) dismissal is warranted: ‘(1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)
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the public policy favoring disposition of cases on their merits; and (5) the availability of less

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drastic sanctions.’” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting

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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). The Henderson factors “are ‘not a

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series of conditions precedent before the judge can do anything,’ but a ‘way for a district judge to

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think about what to do.’” In re Phenylpropanolamine (PPA) Prods. Liab. Litig. (In re PPA), 460

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F.3d 1217, 1226 (9th Cir. 2006) (quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051,

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1057 (9th Cir. 1998)). Dismissal is appropriate “where at least four factors support dismissal . . .

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or where at least three factors ‘strongly’ support dismissal.” Hernandez v. City of El Monte, 138

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F.3d 393, 399 (9th Cir. 1998).
DISCUSSION

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United States District Court
Northern District of California

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Here, the Court finds that the Henderson factors support dismissal. First, “the public’s

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interest in expeditious resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier,

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191 F.3d 983, 990 (9th Cir. 1999). Plaintiff delayed adjudication of the claims in this case by

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failing to participate in ADR proceedings and repeatedly disregarding Court orders, including the

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most recent Order to Show Cause.

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Second, the Court’s need to manage its docket also weighs in favor of dismissal. Non-

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compliance with procedural rules and the Court’s orders wastes “valuable time that [the Court]

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could have devoted to other . . . criminal and civil cases on its docket.” Ferdik, 963 F.2d at 1261.

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As for the third Henderson factor, the mere pendency of a lawsuit cannot constitute

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sufficient prejudice to require dismissal. Yourish, 191 F.3d at 991. However, “prejudice . . . may .

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. . consist of costs or burdens of litigation.” In re PPA, 460 F.3d at 1228. Moreover, “a

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presumption of prejudice arises from a plaintiff’s unexplained failure to prosecute.” Laurino v.

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Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002). A plaintiff has the burden of

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demonstrating a non-frivolous reason for failing to meet a court deadline. Id.; see also Yourish,

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191 F.3d at 991. Here, Plaintiff failed to participate in ADR proceedings, failed to cooperate in

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the filing of a joint status report (and did not file a separate status report), failed to respond to the

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Court’s Order to Show Cause, and has offered no explanation for her failure to prosecute.

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Therefore, the Court concludes that the third Henderson factor also supports dismissal.
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The fourth Henderson factor, that public policy favors disposition of cases on their merits,

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normally weighs strongly against dismissal. See, e.g., Hernandez, 138 F.3d at 399. “At the same

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time, a case that is stalled or unreasonably delayed by a party’s failure to comply with deadlines . .

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. cannot move forward toward resolution on the merits.” In re PPA, 460 F.3d at 1228. The Ninth

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Circuit has “recognized that this factor ‘lends little support’ to a party whose responsibility it is to

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move a case toward disposition on the merits but whose conduct impedes progress in that

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direction.” Id. (quoting In re Exxon Valdez, 102 F.3d 429, 433 (9th Cir. 1996)). Thus, if the

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fourth Henderson factor weighs against dismissal here, it does so very weakly.
Finally, the Court has already attempted less drastic sanctions, without success, and

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therefore determines that trying them again would be inadequate or inappropriate. “Though there

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United States District Court
Northern District of California

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are a wide variety of sanctions short of dismissal available, the district court need not exhaust

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them all before finally dismissing a case.” Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674

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(9th Cir. 1981). Here, the Court already attempted the lesser sanction of issuing two Orders to

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Show Cause and giving Plaintiff an opportunity to explain her failure to prosecute. As Plaintiff

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failed to respond, another order requiring her to respond is likely to be futile. See, e.g., Gleason v.

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World Sav. Bank, FSB, 2013 WL 3927799, at *2 (N.D. Cal. July 26, 2013) (finding dismissal

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under Rule 41(b) appropriate where the court previously attempted the lesser sanction of issuing

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an Order to Show Cause and giving the plaintiff an additional opportunity to re-plead). Further,

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both Orders to Show Cause warned Plaintiff of the risk of dismissal, and the second provided

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notice to Plaintiff “that the Court shall dismiss this case without a hearing if no responsive

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declaration is filed.” Dkt. No. 26 (emphasis in original). Thus Plaintiff cannot maintain that the

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Court has failed in its “obligation to warn the plaintiff that dismissal is imminent.” Oliva, 958

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F.2d at 274. Accordingly, the Court finds that the fifth factor also weighs in favor of dismissal.

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CONCLUSION
Based on the analysis above, the Court finds that at least four of the five Henderson factors

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weigh in favor of dismissal. Thus, it is clear Plaintiff has failed to prosecute this case and

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dismissal is appropriate. However, a less drastic alternative is to dismiss without prejudice. See

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Ferdik, 963 F.2d at 1262. Dismissal will minimize prejudice to Defendants, but dismissing the
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case without prejudice will preserve the ability of Plaintiff to seek relief. Thus, “[i]n an

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abundance—perhaps overabundance—of caution,” the Court finds that dismissal without

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prejudice is appropriate. Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1021 (9th Cir. 2013)

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(remanding to the district court in order to consider whether dismissal should have been without

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prejudice).

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Accordingly, this case is hereby DISMISSED WITHOUT PREJUDICE for failure to
prosecute and failure to comply with the Court’s deadlines and orders.
IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: September 11, 2015
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CYNTHIA COTTER,

Case No. 15-cv-01802-MEJ

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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JP MORGAN CHASE BANK, et al.,
Defendants.

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United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on September 11, 2015, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Cynthia Cotter
3325 San Leandro Street
Oakland, CA 94601

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Dated: September 11, 2015
Richard W. Wieking
Clerk, United States District Court

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By: ___________________________
Chris Nathan, Deputy Clerk to the
Honorable MARIA-ELENA JAMES

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