Edward Morton v. Wells Fargo Bank, N.A. et al

Filing 45

Order of Dismissal for Failure to Prosecute signed by Magistrate Judge Howard R. Lloyd on 3/7/2017. (hrllc3S, COURT STAFF) (Filed on 3/7/2017)

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E-filed 3/7/2017 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EDWARD MORTON, Plaintiff, 8 9 10 United States District Court Northern District of California 11 12 v. WELLS FARGO BANK, N.A., et al., Case No.16-cv-05833-HRL ORDER OF DISMISSAL FOR FAILURE TO PROSECUTE Re: Dkt. Nos. 39, 44 Defendants. In December, the court dismissed the complaint in this matter with leave to amend all but 13 one of the claims alleged by Plaintiff Edward Morton (“Morton”). Dkt. No. 27. The court gave 14 Morton 30 days to file an amended complaint. Id. One day earlier, the court granted leave for 15 Morton’s counsel to withdraw. Dkt. No. 25. Morton’s counsel had filed an unopposed motion 16 asserting that Morton was neither paying nor communicating with him. Dkt. No. 19. Under the 17 terms of the court’s order permitting withdrawal, Morton’s counsel remained in the case for the 18 sole purpose of facilitating communication until Morton either retained another attorney or 19 appeared pro se. Dkt. No. 25. 20 Morton has neither retained new counsel nor appeared on his own behalf. Additionally, 21 Morton failed to timely file an amended complaint. After Morton failed to join in the Case 22 Management Conference statement and did not appear at the Case Management Conference, Dkt. 23 Nos. 33, 38, the court issued an order to show cause why this case should not be dismissed for 24 failure to prosecute, Dkt. No. 39. The show cause order set a hearing for March 7, 2017, and 25 cautioned Morton in bold text: “If plaintiff fails to appear, the case will be dismissed for failure to 26 prosecute.” Dkt. No. 39. Morton failed to appear at the show cause hearing. Dkt. No. 44. All 27 parties have consented to magistrate judge jurisdiction. Dkt. Nos. 8, 14, 18. 28 Having considered the five factors set forth in Malone v. United States Postal Service, 833 1 F.2d 128, 130 (9th Cir. 1987), the court has determined that notwithstanding the public policy 2 favoring the disposition of actions on their merits, the court's need to manage its docket and the 3 public interest in the expeditious resolution of the litigation require dismissal of this action. In 4 view of Plaintiff's lack of response to this court's prior order, the court finds there is no appropriate 5 less drastic sanction. Accordingly, this action is dismissed pursuant to Fed. R. Civ. P. 41(b) for 6 Plaintiff's failure to prosecute. The Clerk is instructed to close the file in this matter. 7 8 IT IS SO ORDERED. Dated: 3/7/2017 9 10 HOWARD R. LLOYD United States Magistrate Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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