Clark v. Quality Home Loans et al

Filing 88

ORDER DISMISSING Complaint for Failure to Comply with Court Order. Signed by Judge Roger T. Benitez on 6/15/18.(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT CLARK, an individual,

Case No.: 3:07-cv-00287-BEN-BLM
Plaintiff,

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v.

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QUALITY HOME LOANS, a California
corporation,

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ORDER DISMISSING COMPLAINT
FOR FAILURE TO COMPLY WITH
COURT ORDER

Defendant.

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I. INTRODUCTION & PROCEDURAL HISTORY

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This is an action under the Truth in Lending Act. 1 On October 12, 2007, this case

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was stayed pursuant to § 362 of the United States Bankruptcy Code. 2 On April 10, 2018,

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the Court determined the automatic stay of this case pursuant to 11 U.S.C. § 362 had

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been lifted and any potential claim for relief had been discharged. Accordingly, the

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Court ordered the Plaintiff to show cause why the case should not be dismissed and to do

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so within 30 days of the Order. 3 Plaintiff did not respond to the Court's Order to Show

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(Comp!., Doc. No. I.)
(Notice, Doc. No. 53.)
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(Order, Doc. No. 87.)
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3:07-cv-00287-BEN-B l.M

1 Cause ("OSC"), and the deadline to do so has elapsed. For the reasons that follow, the
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Court DISMISSES this action.

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II. DISCUSSION

Federal Rule of Civil Procedure 4l(b) allows a party, or the Court, to dismiss an

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action "[i]f the plaintiff fails to prosecute or to comply with these rules or a court

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order ... ." "Under Ninth Circuit precedent, when a plaintiff fails to amend his complaint

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after the district judge dismisses the complaint with leave to amend, the dismissal is

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typically considered a dismissal for failing to comply with a court order rather than for

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failing to prosecute the claim." Yourish v. Cal. Amplifier , 191 F.3d 983 , 986 (9th Cir.

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1999).
On April 10, 2018, the Court determined the automatic stay pursuant to 11 U.S.C.

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§ 362 was no longer in place. Accordingly, the Court ordered the Plaintiff to show cause

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why the case should not be dismissed and to do so within 30 days of the Order. Plaintiff

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did not comply with the Court's OSC. Now, the deadline for Plaintiff to respond has

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passed, and neither he or the defendant have notified the Court of a settlement, requested

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an extension to respond or provided a status update.

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When dismissing an action for failure to comply with a court order, the court

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considers: "(l) the public' s interest in expeditious resolution of litigation; (2) the court's

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need to manage its docket; (3) the risk of prejudice to the defendants ( 4) the public policy

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favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives." Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (quoting

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Henderson v. Duncan, 779 F.3d 1421, 1423 (9th Cir. 1986) ). The Ninth Circuit affirms

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"a dismissal where at least four factors support dismissal, ... or where at least three

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factors ' strongly' support dismissal." Yourish, 191 F.3d at 990 (quoting Ferdik v.

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Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) ). "Although it is preferred, it is not

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required that the district court make explicit finds in order to show that it has considered

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these factors and [the appeals court] may review the record independently to determine if

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the district court has abused its discretion." Ferdik, 963 F .2d at 1261 .
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3:07-cv-00287-BEN-BLM

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The Ninth Circuit has recognized that the first and fourth factors cut in opposite

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directions. See Yourish, 191 F Jd at 990 (the first factor always weighs in favor of

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dismissal); Hernandez, 138 F.3d at 401 (the fourth factor always weighs against

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dismissal). Here, the second factor weighs in favor of dismissal. The Court must manage

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its docket to ensure the efficient provision of justice. Plaintiff filed his Complaint in

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February 2007, and since then has repeatedly failed to comply with Court orders.

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The third factor addresses the potential risk of prejudice to the defendant. Here,

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the risk of prejudice to the remaining defendant is slight, to non-existent. If after the

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Court dismisses the action, Plaintiff does not seek reconsideration or other relief, then the

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defendant will have won. In the event that he does seek reconsideration, and the Court

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grants it, the defendant may continue to defend the action.

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As for the availability ofless drastic sanctions, Plaintiffs failure to respond to the

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Court's OSC weighs in favor of dismissal. Here, the Court provided Plaintiff more than

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ample time in which to comply. Moreover, Plaintiffs actions, or lack thereof, serve as

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yet another example of his disregard for following Court direction or orders. 4 Plaintiff

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may not escape dismissal with less drastic sanctions where he repeatedly fails to comply

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with deadlines. More than two months have passed since Plaintiff was supposed to

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respond to the Court's OSC with no response, or request for relief.
On balance, the factors set forth in Hernandez weigh in favor of dismissing this

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action. Yourish, 191 F.3d at 990.

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Ill

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Ill

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Ill

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Ill

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Plaintiff also failed to comply with this Courts April 23, 2008 Order (Doc. No. 76)
requiring Plaintiff to notify the Court and file a Motion to Lift the Stay within 15 days of
the termination of bankruptcy proceedings.
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III. CONCLUSION

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For the foregoing reasons, the Court DISMISSES this action with prejudice.

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IT IS SO ORDERED.

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DATED:June~18

EZ
nited States District' udge

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