Hughes v. Wells Fargo Bank

Filing 23

ORDER by Judge ARMSTRONG adopting Report and Recommendations as to 6 Motion to Dismiss; adopting Report and Recommendations as to 16 Report and Recommendations. (lrc, COURT STAFF) (Filed on 4/22/2013)

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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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ROSE HUGHES,

Case No: C 13-00499 SBA

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Plaintiff,
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ORDER ACCEPTING REPORT
AND RECOMMENDATION

vs.
Docket 16

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WELLS FARGO BANK fka WACHOVIA
11 MORTGAGE fsb, fka WORLD SAVINGS
BANK, and DOES 1-10 inclusive,
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Defendants.
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On April 2, 2013, Magistrate Judge Jacqueline Scott Corley ("the Magistrate")

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issued a Report and Recommendation in which she recommends that this action be

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dismissed with prejudice for failure to prosecute under Rule 41(b) of the Federal Rules of

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Civil Procedure. Dkt. 16. The Report and Recommendation states that Plaintiff has failed

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to file an opposition or statement of non-opposition to Defendant's motion to dismiss, and

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has failed to file a response to the Magistrate's Order to Show Cause Re: Failure to

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Prosecute ("OSC"). Id. The Report and Recommendation also states that "[a]s Plaintiff has

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neither consented to nor declined the undersigned magistrate judge's jurisdiction, the Clerk

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of the Court is ordered to reassign this action to a district court judge." Id. On April 11,

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2013, this case was reassigned to the undersigned. Dkt. 19.

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Any objections to the Magistrate's Report and Recommendation were required to be

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filed within fourteen days of service thereof. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. §

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636(b)(1)(C). The district court must "make a de novo determination of those portions of

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the report or specified proposed findings or recommendations to which objection is made,"

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and "may accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

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The deadline to object to the Report and Recommendation was April 16, 2013. See

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Fed.R.Civ.P. 6(a)(1); Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To date, no

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objections have been filed. In the absence of a timely objection, the Court "need only

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satisfy itself that there is no clear error on the face of the record in order to accept the

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recommendation." Fed.R.Civ.P. 72, Advisory Committee Notes (1983) (citing Campbell v.

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U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United States v. Reyna-Tapia,

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328 F.3d 1114, 1121 (9th Cir. 2003) ("The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear

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that the district judge must review the magistrate judge's findings and recommendations de

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novo if [an] objection is made, but not otherwise.") (en banc). The Court has reviewed the

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record on its face and finds no clear error.

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Although the Magistrate did not specifically analyze the factors for dismissal under

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Rule 41(b), the Court has reviewed the record, including the findings of the Magistrate, and

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finds that dismissal is appropriate for failure to prosecute. An action may be dismissed

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under Rule 41(b) for failure to prosecute or to comply with a Court Order. See Hells

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Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005)

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(recognizing that a district court may dismiss an action pursuant to Rule 41(b) sua sponte

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for a plaintiff's failure to prosecute or comply with a court order); Ferdik v. Bonzelet, 963

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F.2d 1258, 1260 (9th Cir. 1992) ("the district court may dismiss an action for failure to

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comply with any order of the court"). "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 must weigh the

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following factors: (1) the public's interest in expeditious resolution of litigation; (2) the

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court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4)

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the availability of less drastic alternatives; and (5) the public policy favoring disposition of

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cases on their merits." Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).

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

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Court's ability to move this case forward by failing to respond to Defendant's motion to

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dismiss and to the Magistrate's OSC.

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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, a Plaintiff disregards a Court

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Order and fails to prosecute her 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 defendant, 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, Plaintiff has offered no explanation for her failure to

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respond to Defendant's motion to dismiss or to the Magistrate's OSC, nor is any apparent

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

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at 991-992.

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As for the fourth factor, less drastic alternatives to dismissal have been considered.

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On March 13, 2013, the Magistrate issued an OSC directing Plaintiff to show cause why

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this action should not be dismissed for failure to prosecute. Dkt. 15. In that Order, the

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Magistrate warned Plaintiff that this action may be dismissed if she fails to respond to

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Defendant's motion to dismiss and to the OSC by March 27, 2013. Id. "[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 for failure to prosecute. Pagtalunan, 291 F.3d

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at 643 (affirming dismissal where three factors favored dismissal, while two factors

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weighed against dismissal).

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Accordingly, for the reasons stated above,

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IT IS HEREBY ORDERED THAT the Magistrate's Report and Recommendation

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(Dkt. 16) is ACCEPTED. This action is dismissed with prejudice for failure to prosecute

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under Rule 41(b). The Clerk shall close the file and terminate all pending matters.

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IT IS SO ORDERED.
Dated: 4/22/13

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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