Marscellas et al v. Wells Fargo Bank, N.A. et al

Filing 60

ORDER DISMISSING CASE WITH PREJUDICE UNDER FED. R. CIV. P. 41(B). Signed by Judge Beth Labson Freeman on 1/13/2016. (blflc3S, COURT STAFF) (Filed on 1/13/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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CARL MARSCELLAS, et al.,

Case No. 13-cv-05806-BLF

Plaintiffs,
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v.
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WELLS FARGO BANK, N.A., et al.,
Defendants.

ORDER DISMISSING CASE WITH
PREJUDICE UNDER FED. R. CIV. P.
41(B)
[Re: ECF 58, 59]

United States District Court
Northern District of California

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Plaintiffs filed this action, alleging wrongful foreclosure and other claims arising out of a

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foreclosure sale of Plaintiffs’ residence. Plaintiffs have not filed any documents or complied with

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Court orders since September 17, 2014. In light of Plaintiffs’ failure to prosecute this action and

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comply with Court orders, on December 15, 2015, the Court issued an order to show cause and a

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notice of imminent dismissal to Plaintiffs warning that a failure to prosecute or comply with Court

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orders would result in a dismissal of this action with prejudice under Fed. R. Civ. P. 41(b). ECF

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59. Plaintiffs were ordered to file a response to the order show cause by January 11, 2016. Id. To

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date, Plaintiffs have failed to respond and the Court hereby DISMISSES this action with prejudice

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under Fed. R. Civ. P. 41(b).

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I.

BACKGROUND
Plaintiffs, proceeding pro se, brought their Complaint in Monterrey Superior Court on

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October 24, 2013. Exh. A, ECF 1. Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) removed

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the action to the Northern District of California on December 16, 2013. ECF 1. Thereafter, on

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December 23, 2013, Wells Fargo filed its Motion to Dismiss. ECF 12. Plaintiffs failed to timely

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respond, and filed a delinquent Opposition on May 23, 2014. ECF 24. The Court denied Wells

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Fargo’s request to ignore Plaintiffs’ Opposition, ECF 25, and granted Wells Fargo additional time

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in which to substantively reply to Plaintiffs’ Opposition. Wells Fargo filed its Reply on June 23,

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2014. ECF 27. At oral argument on June 26, 2014, Wells Fargo informed the Court that it had

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reached a settlement with Plaintiffs and sought a continuance of the hearing for thirty days so the

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parties could file with the Court the necessary paperwork for settlement. ECF 29.
On July 29, 2014, Plaintiffs filed a notice of voluntary dismissal. ECF 37. On September

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10, 2014, Plaintiffs filed an ex parte application for relief from the voluntary dismissal. ECF 38.

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Plaintiffs argued that the notice of voluntary dismissal was filed by the Eviction Defense Group, a

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company of non-attorney individuals acting as foreclosure specialists, in retaliation over a

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disagreement with Plaintiffs. ECF 39. Plaintiffs contended they did not realize the notice of
voluntary dismissal was filed until August 14, 2014. ECF 39. As a result, on September 17, 2014,

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United States District Court
Northern District of California

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the Court granted Plaintiffs’ ex parte application for relief and vacated the voluntary dismissal.

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ECF 45.

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On August 20, 2015, Wells Fargo filed a motion to dismiss. ECF 54. Plaintiffs did not

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respond to the motion to dismiss or appear at the November 19, 2015 hearing on the motion to

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dismiss. ECF 57. On December 15, 2015, the Court granted Wells Fargo’s motion to dismiss

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with leave to amend and ordered that any amended complaint must be filed by January 11, 2016.

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ECF 58. Since Plaintiffs have not taken any action in this case since September 17, 2014, the

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Court also issued an order to show cause by January 11, 2016 why this case should not be

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dismissed against all Defendants because of Plaintiffs’ failure to prosecute or comply with Court

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orders. ECF 59. To date, Plaintiffs have not filed an amended complaint and have not responded

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to the order to show cause.

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II.

LEGAL STANDARD
Fed. R. Civ. P. Rule 41(b) allows for the involuntary dismissal of an action “[i]f the

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plaintiff fails to prosecute or to comply with these rules or a court order.” The text of Rule 41(b)

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refers to a defense motion for dismissal, however, the Rule also permits a court to sua sponte

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dismiss an action for failure to prosecute or failure to comply with a court order. See Link v.

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Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). A plaintiff’s failure to take any action in response

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to a Court’s prior dismissal with leave to amend under Rule 12(b)(6) is considered a failure to
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comply with a court order, Yourish v. Calif. Amplifier, 191 F.3d 983, 986 (9th Cir. 1999), and a

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plaintiff’s failure to serve Defendants is considered a failure to prosecute. See Haynes v. Hanson,

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Case No. 11-cv-05021-JST, 2013 WL 3922336, at *2 (N.D. Cal. July 26, 2013).
A dismissal pursuant to Rule 41(b) “‘must be supported by a showing of unreasonable

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delay.’” 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)). In addition, before imposing dismissal as a

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sanction, “the district court must consider five factors: ‘(1) the public’s interest in expeditious

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

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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the
availability of less drastic alternatives.’” Yourish, 191 F.3d at 990.

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United States District Court
Northern District of California

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III.

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DISCUSSION
Plaintiffs’ unjustified failure to file a response to Wells Fargo’s motion to dismiss, appear

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at the hearing, file an amended complaint or take any action in this case since September 17, 2014

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qualifies as an unreasonable delay. See Ryles v. Felker, No. 2:07-cv-02753-RCT, 2010 WL

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3035991, at *1-2 (E.D. Cal. Aug. 2, 2010); Grewal v. Brown, No. 98-0067-GEBDADPS, 1998

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WL 919882, at *1-2 (E.D. Cal. Dec. 14, 1998).

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Further, four out of the five Henderson factors strongly favor dismissal. In connection

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with the first factor, Plaintiffs’ inaction has effectively stalled the case since 2014. Plaintiffs not

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only failed to file an amended complaint within the allotted time, but also failed to seek an

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extension of time to amend, or take any other action in response to the Court’s order granting the

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motion to dismiss or the Court’s order to show cause and notice of imminent dismissal. With

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respect to the second factor, Plaintiffs’ conduct has interfered with the Court’s need to manage its

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docket, because Plaintiffs has repeatedly ignored the Court’s orders by not filing an amended

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complaint within the time allotted, and by not responding to the order to show cause and notice of

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imminent dismissal. As to the third factor, failure to dismiss this action would prejudice

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Defendants who are entitled to a resolution of Plaintiffs’ claims after demonstrating that those

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claims lack merit. The fourth factor—the public policy favoring disposition of cases on their

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merits—does not favor dismissing the action. Finally, as to the fifth factor, the Court sees little
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point to imposing less severe sanctions because Plaintiffs have shown no interest in complying

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with this Court’s orders or in prosecuting this action. Plaintiffs have not taken any action since

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September 17, 2014. Plaintiffs did not respond to Wells Fargo’s motion to dismiss, appear at the

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hearing, file an amended complaint, or respond to the order to show cause and notice of imminent

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dismissal. The Court’s order to show cause expressly warned Plaintiffs about the potential for

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imminent dismissal under Rule 41(b) and Plaintiffs did not respond. “The failure of the plaintiff

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eventually to respond to the court’s ultimatum—either by amending the complaint or by indicating

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to the court that it will not do so—is properly met with the sanction of a Rule 41(b) dismissal.”

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Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004).

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United States District Court
Northern District of California

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IV.

ORDER
Accordingly, the record supports dismissal with prejudice pursuant to Rule 41(b) and the

Court hereby DISMISSES all claims against Defendants WITH PREJUDICE.
IT IS SO ORDERED.
Dated: January 13, 2016
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BETH LABSON FREEMAN
United States District Judge

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