Campos et al v. Bank of America, Inc. et al

Filing 36

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 11/21/12. (lrc, COURT STAFF) (Filed on 12/3/2012)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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8 DENNIS CAMPOS, et al.,

Plaintiffs,

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Case No: C 11-0431 SBA
ORDER DISMISSING
ACTION

vs.

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11 BANK OF AMERICA, INC., a corporation,

et al.,
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Defendants.
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On July 11, 2012, the Court issued an Order granting Defendants' motion to dismiss

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the first amended complaint. Dkt. 32. Plaintiffs were given twenty-one (21) days to file a

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second amended complaint. Id. Plaintiffs failed to do so. On August 20, 2012, the Court

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issued an Order warning Plaintiffs that this action will be dismissed pursuant to Rule 41(b)

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of the Federal Rules of Civil Procedure for failure to prosecute and failure to follow a court

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Order if they do not file a second amended complaint within seven (7) days from August

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20, 2012. Dkt. 34. To date, Plaintiffs have not filed anything in response to the Court's

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August 20, 2012 Order.

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An action may be dismissed under Rule 41(b) for failure to prosecute or to comply

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with a Court Order. See Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d

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683, 689 (9th Cir. 2005) (recognizing that a district court may dismiss an action pursuant to

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Rule 41(b) sua sponte for a plaintiff's failure to prosecute or comply with a court order);

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Ferdick v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("the district court may dismiss

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an action for failure to comply with any order of the court"). "In determining whether to

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dismiss a claim for failure to prosecute or failure to comply with a court order, the Court

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must weigh the following factors: (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

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public

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policy favoring disposition of cases on their merits." Pagtalunan v. Galaza, 291 F.3d 639,

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642 (9th Cir. 2002).

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In the instant case, the Court finds that the above-referenced factors weigh in favor

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of dismissal. With regard to the first factor, "[t]he public's interest in expeditious resolution

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of litigation always favors dismissal." Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th

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Cir. 1999). This is particularly true in the instant case where Plaintiffs have impeded the

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Court's ability to move this case forward by failing to respond to Orders issued by this

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Court on July 11, 2012 and August 20, 2012.

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The second factor, the Court's need to manage its docket, also militates in favor of

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dismissal. See Pagtalunan, 291 F.3d at 642 ("It is incumbent upon the Court to manage its

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docket without being subject to routine noncompliance of litigants"); Yourish, 191 F.3d at

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990 (recognizing court's need to control its own docket); see also Ferdik, 963 F.2d at 1261

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(non-compliance with a court's order diverts "valuable time that [the court] could have

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devoted to other major and serious criminal and civil cases on its docket"). The Court

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cannot manage its docket if it maintains cases where, as here, the Plaintiffs disregard Court

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Orders and fail to prosecute their case. The Court must devote its limited resources to cases

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in which the litigants are actually proceeding.

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The third factor, the risk of prejudice to the defendants, generally requires that "a

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defendant . . . establish that plaintiff's actions impaired defendant's ability to proceed to trial

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or threatened to interfere with the rightful decision of the case." Pagtalunan, 291 F.3d at

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642. At the same time, the Ninth Circuit has "related the risk of prejudice to the plaintiff's

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reason for defaulting." Id. Here, Plaintiffs have offered no explanation for their failure to

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respond to the Court's July 11, 2012 and August 20, 2012 Orders, nor is any apparent from

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the record. These facts weigh strongly in favor of dismissal. See Yourish, 191 F.3d at 991;

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Ghazali, 46 F.3d. at 54.
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As to the fourth factor, the Court has already considered less drastic alternatives to

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dismissal. As noted, the Court sua sponte afforded Plaintiffs another opportunity to file a

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second amended complaint on August 20, 2012 and warned them that the failure to comply

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with the Court's Order would result in the dismissal of this action. "[A] district court's

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warning to a party that failure to obey the court's order will result in dismissal can satisfy

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the 'consideration of [less drastic sanctions]' requirement." Ferdik, 963 F.2d at 1262.

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The final factor, which favors disposition of cases on the merits, by definition,

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weighs against dismissal. Pagtalunan, 291 F.3d at 643 ("Public policy favors disposition of

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cases on the merits. Thus, this factor weighs against dismissal.").

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In sum, the Court concludes that four of the five relevant factors weigh strongly in

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favor of dismissing this action in its entirety. Pagtalunan, 291 F.3d at 643 (affirming

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dismissal where three factors favored dismissal, while two factors weighed against

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dismissal). Accordingly,

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IT IS HEREBY ORDERED THAT the instant action is DISMISSED WITHOUT

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PREJUDICE pursuant to Rule 41(b). The Clerk shall close the file and terminate all

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pending matters.

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IT IS SO ORDERED.
Dated: 11/21/12

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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