Fraizer v. Wells Fargo Bank, National Association et al

Filing 14

ORDER DISMISSING CASE. Signed by Judge James Donato on 9/2/15. (lrcS, COURT STAFF) (Filed on 9/2/2015)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 REGINA FRAIZER, Case No. 3:15-cv-02559-JD Plaintiff, 8 v. ORDER OF DISMISSAL FOR FAILURE TO PROSECUTE 9 10 United States District Court Northern District of California 11 WELLS FARGO BANK, NATIONAL ASSOCIATION, et al., Defendants. 12 13 On May 7, 2015, pro se plaintiff Regina Fraizer filed a complaint against defendants Wells 14 Fargo Bank, N.A., and Martha G. Bronitsky. Notice of Removal, Dkt. No. 1. The case was 15 removed to this Court on June 9, 2015. See id. On June 15, 2015, Wells Fargo filed a motion to 16 dismiss the complaint. See Mot. to Dismiss, Dkt. No. 10. Ms. Fraizer did not file a response to 17 Wells Fargo’s motion within the time period required by Civil Local Rule 7-3. On August 14, 18 2015, the Court ordered Ms. Fraizer to show cause by August 24, 2015, why Wells Fargo’s 19 motion to dismiss should not be granted. Order to Show Cause, Dkt. No. 12. Ms. Fraizer did not 20 respond to the Court’s Order to Show Cause within the required time period. 21 22 23 24 The August 24th deadline has passed without a response from Ms. Fraizer, and the Court dismisses the action for failure to prosecute. DISCUSSION Federal Rule of Civil Procedure 41(b) provides the Court with authority to dismiss a case 25 for failure to prosecute or to comply with any of its orders. Fed. R. Civ. P. 41(b); see Ferdik v. 26 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). “In determining whether to dismiss a claim for 27 failure to prosecute or failure to comply with a court order, the Court must weigh the following 28 factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to 1 manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the availability of 2 less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 3 See Espinosa v. Washington Mut. Bank, No. C 10-04464 SBA, 2011 WL 334209, at *1 (N.D. Cal. 4 Jan. 31, 2011) (citing Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)). 5 Application of these factors here weighs in favor of dismissal. Ms. Fraizer has failed to file a response to defendant’s motion to dismiss as required by the Local Rules and by court order, 7 despite having been warned that the case might be dismissed as a result for failure to prosecute. 8 See Dkt. No. 12. With respect to the first factor, “[t]he public’s interest in expeditious resolution 9 of litigation always favors dismissal.” Espinosa, 2011 WL 334209, at *1 (citing Yourish v. Cal. 10 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). For the second factor, the Court must be able to 11 United States District Court Northern District of California 6 manage its docket “without being subject to routine noncompliance of litigants.” Pagtalunan, 291 12 F.3d at 642; see also Ferdik, 963 F.2d at 1261 (non-compliance with a court’s order diverts 13 “valuable time that [the court] could have devoted to other major and serious criminal and civil 14 cases on its docket.”). For the third factor, Ms. Fraizer has filed nothing at all since the case was 15 removed and has offered no explanation for her failure to respond to defendant’s motion to 16 dismiss or the Court’s order to show cause. This weighs strongly in favor of dismissal. See 17 Espinosa, 2011 WL 334209, at *2. With respect to the fourth factor, the Court already issued an 18 Order to Show Cause, which provided Ms. Fraizer with additional notice of the pending motion to 19 dismiss, as well as additional time to respond to the merits of that motion. See Dkt. No. 12. The 20 Court’s issuance of the Order to Show Cause satisfies the consideration of less drastic sanctions 21 requirement. See Ferdik, 963 F.2d at 1262. Although the fifth factor -- the public policy favoring 22 disposition of cases on their merits -- might weigh against dismissal, on its own, the cumulative 23 weight of the other factors overrides it. See Pagtalunan, 291 F.3d at 643 (finding district court did 24 not abuse its discretion in dismissing case where three of the five factors weighed in favor of 25 dismissal). 26 27 28 CONCLUSION Because four of the five relevant factors weigh in favor of granting defendant’s unopposed motion to dismiss, the Court grants that motion and dismisses this case in its entirety with 2 1 2 3 4 5 prejudice. The clerk will enter judgment and close the case. IT IS SO ORDERED. Dated: September 1, 2015 ______________________________________ JAMES DONATO United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 REGINA FRAIZER, Case No. 15-cv-02559-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 8 9 10 WELLS FARGO BANK, NATIONAL ASSOCIATION, et al., Defendants. I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. United States District Court Northern District of California 11 12 13 14 15 That on September 2, 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. 16 17 18 Regina Fraizer 1615 Francisco St. Berkeley, CA 94703 19 20 Dated: September 2, 2015 21 22 23 Richard W. Wieking Clerk, United States District Court 24 25 26 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 27 28 4

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