Brown-Kyes v. Greenpoint Mortgage Funding, Inc. et al

Filing 18

ORDER That Case Be Reassigned to a District Court Judge; REPORT AND RECOMMENDATIONS re 9 and 14 That Case Be Dismissed Without Prejudice for Failure to Prosecute. Objections due by 4/8/2011. Signed by Magistrate Judge Howard R. Lloyd on 3/25/2011. (hrllc2, COURT STAFF) (Filed on 3/25/2011)

Brown-Kyes v. Greenpoint Mortgage Funding, Inc. et al

Doc. 18

1 2 3 4 5 6 7 8 9 10 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION GEORGIA C. BROWN-KYES,
For the Northern District of California

*E-FILED 03-25-2011*

United States District Court

11 No. C10-01986 HRL ORDER THAT CASE BE REASSIGNED TO A DISTRICT COURT JUDGE REPORT AND RECOMMENDATION THAT CASE BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE 12 Plaintiff, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Georgia Brown-Kyes was ordered to appear on December 14, 2010 and show cause why this case should not be dismissed for failure to prosecute. She failed to appear, and because not all parties have consented to proceed before a United States Magistrate Judge, this court now issues the following report and recommendation. Plaintiff, who is represented by counsel, filed the instant action in state court for alleged violations of federal and state law in connection with her home mortgage. Defendant Aurora Loan Service (Aurora) removed the matter here, asserting federal question jurisdiction. At the time of removal, none of the defendants had been served. (Docket No. 1, Notice of Removal ¶ 7)). Shortly after, plaintiff voluntarily dismissed Aurora with prejudice. (Docket No. 8). v. GREENPOINT MORTGAGE FUNDING, INC.; GMAC MORTGAGE, LLC; ALLAMERICAN MORTGAGE & PROPERTIES; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; ETS SERVICES, LLC; AURORA LOAN SERVICES; US BANK N.A. TRUSTEE; and DOES 1 to 100, inclusive, Defendants. /

Dockets.Justia.com

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Plaintiff then filed an amended complaint against all the same defendants.1 The docket contains no proofs of service. In her case management statement, however, plaintiff stated that as of August 3, 2010, all but one defendant (ETS Services, LLC) had been served. (Docket No. 11). Of the defendants who reportedly have been served, none have responded to the amended complaint or appeared in this action. A case management conference was held in this matter on September 28, 2010. Neither plaintiff nor her attorney appeared. Instead, a "special appearance" was made on plaintiff's behalf by an attorney with no connection whatsoever to these proceedings. No significant activity has occurred in the litigation since then. Rule 41 of the Federal Rules of Civil Procedure provides that a plaintiff's failure to prosecute may result in dismissal of the action. FED.R.CIV.P. 41(b). Although Rule 41, on its face, authorizes dismissal on a motion by a defendant, the court also has inherent power to dismiss actions sua sponte, without notice or hearing, "to achieve the orderly and expeditious disposition of cases." Link v. Wabash Railroad Co., 370 U.S. 626, 630-32, 82 S. Ct. 1386 (1962); see also Oliva v. Sullivan, 958 F.2d 272, 273 (9th Cir. 1992) ("District courts have inherent power to control their dockets and may impose sanctions, including dismissal, in the exercise of that discretion."); Villegas v. City of Gilroy, 363 F. Supp.2d 1207, 1208, fn. 1 (N.D. Cal. 2005) (same). Federal actions must be prosecuted with "reasonable diligence" in order to avoid dismissal. Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). In determining whether such a dismissal is warranted, "the district court must consider five factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives." Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).

United States District Court

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For the Northern District of California

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In view of the prior dismissal of Aurora with prejudice, Aurora's inclusion in the amended pleading apparently was an inadvertent error.
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Analysis of the relevant factors weighs in favor of dismissal here. Indeed, all indications are that plaintiff has abandoned the instant litigation.2 Accordingly, this court recommends that this action be dismissed without prejudice for failure to prosecute. Any party may serve and file objections to this Report and Recommendation within fourteen days after being served. FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1)(B) & (C). Dated: March 25, 2011 ________________________________ HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

United States District Court

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For the Northern District of California

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2 While the instant proceedings were languishing, plaintiff apparently elected to file, on a pro se basis, a separate lawsuit against two of the named defendants: ETS Services and Mortgage Electronic Registration Systems, Inc., Case No. C10-05535 LHK (HRL). That lawsuit also concerns alleged predatory lending conduct with respect to the same real property.

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5:10-cv-01986-HRL Notice has been electronically mailed to: Donald Michael Scotten [e-mail], [e-mail], [e-mail] Justin D. Balser [e-mail]

4 5 6 7 8 9 10 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program. Justin Donald Balser [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail] Stephen Conrad Ruehmann [e-mail]

United States District Court

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For the Northern District of California

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