Leonberger v. Wells Fargo Bank et al

Filing 25

ORDER by Judge Hamilton granting 22 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 9/19/2013) (Additional attachment(s) added on 9/19/2013: # 1 Certificate/Proof of Service) (nah, COURT STAFF).

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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LIDIA LEONBERGER,
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Plaintiff,

No. C 13-1114 PJH

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v.
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WELLS FARGO BANK, et al.,

ORDER DISMISSING CASE FOR
FAILURE TO COMPLY WITH COURT
ORDER AND FAILURE TO PROSECUTE

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For the Northern District of California

United States District Court

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Defendants.
_______________________________/

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Plaintiff Lidia Leonberger (“plaintiff”) filed the above-entitled action on December 18,

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2012, in the Superior Court of California, county of Contra Costa. On March 12, 2013,

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defendant Wells Fargo Bank (“defendant”) removed the action to this court. On March 19,

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2013, defendant filed a motion to dismiss for failure to state a claim. Plaintiff did not

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oppose or otherwise respond to the motion, and did not appear at the hearing on June 12,

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2013. The court granted the motion on June 25, 2013, but with leave to amend, so that

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plaintiff could attempt to cure the deficiencies of the complaint. Plaintiff was given until July

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26, 2013 to file an amended complaint. Plaintiff did not file an amended complaint by that

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date, and on August 16, 2013, defendant filed another motion to dismiss, this time based

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on plaintiff’s failure to comply with a court order. As of this date, plaintiff has not responded

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to this second motion to dismiss, nor has she attempted to comply with the court’s previous

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order by filing an amended complaint.

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When considering whether to dismiss an action pursuant to Rule 41(b) for failure to

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comply with a court order, the court considers (1) the public's interest in expeditious

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resolution of litigation; (2) the court's needs to manage its docket; (3) the risk of prejudice to

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defendants; (4) the public policy favoring the disposition of cases on their merits; and

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(5) the availability of less drastic sanctions. Malone v. United States Postal Service, 833

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F.2d 128, 130 (9th Cir. 1987); Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).

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Under Rule 41(b), plaintiffs are required to prosecute their case with reasonable

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diligence. Moore v. Telfon Communications Corp., 589 F.2d 959, 967 (9th Cir. 1978). The

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court considers the same five factors in considering whether to dismiss a case for failure to

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prosecute.

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Here, the first three factors favor dismissal. The public’s interest in expeditious

983, 990 (9th Cir. 1999). The court’s need to manage its docket also favors dismissal. As

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explained above, plaintiff has had numerous opportunities to oppose dismissal, but has not

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For the Northern District of California

resolution of litigation always favors dismissal. Yourish v. California Amplifier, 191 F.3d

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United States District Court

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done so. Plaintiff has offered no excuse for her failure to prosecute her claims or for her

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complete disregard for court orders. Under these circumstances, the delay is unreasonable

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and creates a presumption of prejudice to defendants. Henderson, 779 F.2d at 1423.

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Without any commitment by plaintiff to proceed with the case, this risk of prejudice favors

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dismissal.

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As to the fourth factor, the court has already issued a detailed order that addressed

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plaintiff’s claims on the merits. The court granted leave to amend, but plaintiff did not file

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an amended complaint remedying the deficiencies identified in the court’s order. Finally, as

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for the availability of less drastic alternatives, the court finds that in light of plaintiff’s failure

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to appear, there is no alternative to dismissing the case.

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Accordingly, the court finds that this case must be dismissed under Rule 41(b). The
September 25, 2013 hearing on defendant’s motion to dismiss is VACATED.

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IT IS SO ORDERED.

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Dated: September 19, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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