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)

E-filed 3/7/2017

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EDWARD MORTON,
Plaintiff,

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United States District Court
Northern District of California

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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

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one of the claims alleged by Plaintiff Edward Morton (“Morton”). Dkt. No. 27. The court gave

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Morton 30 days to file an amended complaint. Id. One day earlier, the court granted leave for

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Morton’s counsel to withdraw. Dkt. No. 25. Morton’s counsel had filed an unopposed motion

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asserting that Morton was neither paying nor communicating with him. Dkt. No. 19. Under the

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terms of the court’s order permitting withdrawal, Morton’s counsel remained in the case for the

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sole purpose of facilitating communication until Morton either retained another attorney or

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appeared pro se. Dkt. No. 25.

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Morton has neither retained new counsel nor appeared on his own behalf. Additionally,

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Morton failed to timely file an amended complaint. After Morton failed to join in the Case

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Management Conference statement and did not appear at the Case Management Conference, Dkt.

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Nos. 33, 38, the court issued an order to show cause why this case should not be dismissed for

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failure to prosecute, Dkt. No. 39. The show cause order set a hearing for March 7, 2017, and

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cautioned Morton in bold text: “If plaintiff fails to appear, the case will be dismissed for failure to

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prosecute.” Dkt. No. 39. Morton failed to appear at the show cause hearing. Dkt. No. 44. All

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parties have consented to magistrate judge jurisdiction. Dkt. Nos. 8, 14, 18.

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Having considered the five factors set forth in Malone v. United States Postal Service, 833

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F.2d 128, 130 (9th Cir. 1987), the court has determined that notwithstanding the public policy

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favoring the disposition of actions on their merits, the court's need to manage its docket and the

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public interest in the expeditious resolution of the litigation require dismissal of this action. In

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view of Plaintiff's lack of response to this court's prior order, the court finds there is no appropriate

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less drastic sanction. Accordingly, this action is dismissed pursuant to Fed. R. Civ. P. 41(b) for

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Plaintiff's failure to prosecute. The Clerk is instructed to close the file in this matter.

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IT IS SO ORDERED.
Dated: 3/7/2017

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HOWARD R. LLOYD
United States Magistrate Judge

United States District Court
Northern District of California

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