Bardwell v. Bank of America
Filing
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ORDER TO SHOW CAUSE. Show Cause Response due by 9/28/2017. Signed by Judge Saundra B Armstrong on 9/14/17. (Attachments: # 1 Certificate/Proof of Service)(dtmS, COURT STAFF) (Filed on 9/14/2017)
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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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5 IDA MAE BARDWELL,
Case No: C 17-3212 SBA
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ORDER TO SHOW CAUSE RE
DISMISSAL
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Plaintiff,
vs.
8 BANK OF AMERICA,
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Defendant.
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On June 5, 2017, Plaintiff Ida Mae Bardwell (“Plaintiff”) filed a pro se wrongful
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foreclosure Complaint against Bank of America (“Defendant”). The same day, the Court issued an
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Order directing Plaintiff to file her ADR Certification along with a Stipulation to ADR Process or
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Notice for Need for ADR Phone Conference by August 18, 2017. Dkt. 3. In a separate Order,
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Plaintiff was ordered to file her Joint Case Management Statement by no later than September 7,
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2017, and to appear for the conference on September 14, 2017. Dkt. 7. Plaintiff has complied with
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none of those requirements.
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“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action
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for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th
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Cir. 1992). In considering whether to dismiss a case under Rule 41(b), “the district court must
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weigh the following factors . . . : (1) the public’s interest in expeditious resolution of litigation; (2)
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the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
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policy favoring disposition of cases on their merits and (5) the availability of less drastic
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sanctions.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v.
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Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). Dismissal is appropriate “where at least four
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factors support dismissal ... or where at least three factors ‘strongly’ support dismissal.”
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Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998).
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Separate from the above, the Court notes that there is no indication in the record that
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Plaintiff has served Defendant within ninety days of the filing of the Complaint. See Fed. R. Civ.
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P. 4(m). A court may dismiss an action without prejudice if the summons and complaint are not
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served on the defendants within 90 days or such further time as ordered by the court. Id.; see also
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Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). Rule 4(m) requires the court to extend the
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time for service if a plaintiff shows good cause for the failure to timely serve the complaint. As a
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general matter, a showing of good cause requires more than simple inadvertence or a mistake.
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Wei v. State of Hawaii, 763 F.2d 370, 371-72 (9th Cir. 1985) (per curiam). “At a minimum, good
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cause means excusable neglect.” Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991).
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Accordingly,
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IT IS HEREBY ORDERED THAT Plaintiff shall show cause why the instant action should
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not be dismissed under (a) Federal Rule of Civil Procedure 41(b) for failure to comply with a court
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order and (b) Federal Rule of Civil Procedure 4(m) for failure to serve the Complaint on Defendant
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within ninety days of the filing of the Complaint. Within fourteen (14) days of the date this order
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is filed, Plaintiff shall file a written memorandum, supported with a declaration if appropriate, to
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explain why the case should or should not be dismissed, taking into account the five factors set
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forth above relevant to Rule 41(b) and the “good cause” requirement under Rule 4(m). In addition,
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the memorandum shall set forth the nature of the cause, its present status, the reason it has not been
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brought to trial or otherwise terminated, any basis for opposing dismissal and its expected course if
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not dismissed. FAILURE TO FULLY COMPLY WITH THIS ORDER WILL BE DEEMED
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SUFFICIENT GROUNDS TO DISMISS THE ACTION, WITHOUT FURTHER NOTICE.
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IT IS SO ORDERED.
Dated: September 14, 2017
______________________________
SAUNDRA BROWN ARMSTRONG
Senior United States District Judge
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