Laygo et al v. World Savings Bank et al

Filing 12

AMENDED 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 3/28/2013. (lblc2, COURT STAFF) (Filed on 3/28/2013) (Additional attachment(s) added on 3/28/2013: # 1 Certificate/Proof of Service) (ls, COURT STAFF).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division ANDREA C. LAYGO et al, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 Plaintiffs, 13 v. 14 No. C 12-05531 LB AMENDED ORDER THAT CASE BE REASSIGNED TO A DISTRICT COURT JUDGE REPORT AND RECOMMENDATION WORLD SAVINGS BANK et al, 15 16 [Re: ECF No. 1] Defendants _____________________________________/ 17 Plaintiffs Andrea C. Laygo, Teresito M. Laygo, and Teresito Joselito Catalan (collectively, 18 “Plaintiffs”) filed a complaint against Defendants World Savings Bank and Golden West Savings 19 Association Service Company (collectively, “Defendants”) on October 26, 2012. Complaint, ECF 20 No. 1 at 1.1 This means that, pursuant to the Federal Rule of Civil Procedure 4(m), Plaintiffs had 21 until February 23, 2013 to serve Defendants. Fed. R. Civ. P. 4(m); see also Order to Show Cause, 22 ECF No. 9 at 1. To date, Plaintiffs have filed no proof that Defendants have been served. See 23 generally Docket. Because Plaintiffs had not filed any proof that Defendants had been served, on 24 March 5, 2013, the court ordered Plaintiffs to show cause, by filing a written response by March 21, 25 2013, why this case should not be dismissed without prejudice for failure to prosecute. Order to 26 Show Cause, ECF No. 9 at 1. The clerk of the court served Plaintiffs by mail, but all 27 28 1 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; REPORT AND RECOMMENDATION 1 correspondence to Plaintiffs has been returned undeliverable. See Dkt. Entries at ECF Nos. 4, 5, 7, 2 8, 10. 3 A court may dismiss an action based on a party’s failure to prosecute an action. Ferdik v. 4 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). In determining whether to dismiss a claim for 5 failure to prosecute or failure to comply with a court order, the court weighs the following factors: (1) 6 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 7 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and 8 (5) the public policy favoring disposition of cases on their merits. Pagtalunan v. Galaza, 291 F.3d 9 639, 642 (9th Cir. 2002); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). These factors are a guide Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) 12 For the Northern District of California and “are ‘not a series of conditions precedent before the judge can do anything.’” In re 11 UNITED STATES DISTRICT COURT 10 (quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998)). Dismissal is 13 appropriate “where at least four factors support dismissal, . . . . or where at least three factors 14 ‘strongly’ support dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) 15 (quoting Ferdik, 963 F.2d at 1263). 16 Here, at least four factors favor dismissal. There is nothing in the record indicating that any 17 Defendants have been served, Plaintiffs have not filed any notification regarding a change in address, 18 and they have not prosecuted the case. This is not “expeditious litigation,” and the court must keep 19 the cases on its docket moving. Also, there is no risk of prejudice to Defendants. 20 Because no party has consented to or declined the undersigned’s jurisdiction, the court ORDERS 21 the Clerk to the Court to reassign this action to a district court judge. The court RECOMMENDS 22 that the newly-assigned district court judge dismiss this action without prejudice for failure to 23 prosecute. The March 28, 2013 show cause hearing is VACATED. Any party may file objections to 24 this Report and Recommendation with the district judge within fourteen days after being served with 25 a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); N.D. Cal. Civ. L.R. 72. Failure to file an 26 objection may waive the right to review of the issue in the district court. 27 IT IS SO ORDERED. 28 C 12-05531 LB ORDER; REPORT AND RECOMMENDATION 2 1 Dated: March 28, 2013 2 _______________________________ LAUREL BEELER United States Magistrate Judge 3 4 5 6 7 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 12-05531 LB ORDER; REPORT AND RECOMMENDATION 3

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