Luna et al v. U.S. Bank, N.A. et al

Filing 21

ORDER Dismissing Action Without Prejudice And Expunging Notice of Lis Pendens. Defendants' unopposed Motion to Dismiss is Granted (Doc. 5 ). The action is Dismissed Without Prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. Plaintiffs' notice of lis pendens is Expunged. Signed by Judge M. James Lorenz on 3/24/2011. (All non-registered users served via U.S. Mail Service) (srm)

Luna et al v. U.S. Bank, N.A. et al

Doc. 21

1 2 3 4 5 6 7 8 9 10 11 OSCAR and YVONNE LUNA, 12 13 v. 14 U.S. BANK, N.A., et al., 15 16 17 In this mortgage foreclosure action, Defendants U.S. Bank Association, successor in Defendants. Plaintiffs, ) ) ) ) ) ) ) ) ) ) Civil No. 09-cv-2807-L(NLS) ORDER DISMISSING ACTION WITHOUT PREJUDICE AND EXPUNGING NOTICE OF LIS PENDENS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

18 interest to the Federal Deposit Insurance Corporation as receiver for Defendant Downey Savings 19 and Loan Association, and National Default Servicing Corporation ("Moving Defendants") filed 20 a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). 21 Plaintiffs did not file an opposition or a notice of non-opposition as required by Civil Local Rule 22 7.1(f)(3)(a). On March 14, 2011 the Court ordered Plaintiffs no later than March 21, 2011 to 23 show cause why the Moving Defendants' motion should not be granted as unopposed pursuant 24 to Civil Local Rule 7.1(f)(3)(c) and the complaint dismissed pursuant to Federal Rule of Civil 25 Procedure 41(b) for failure to prosecute. Plaintiffs were ordered together with a response to the 26 order to show cause to file either a proposed opposition to the Moving Defendants' motion or a 27 notice of non-opposition. They were admonished that if they failed timely to comply with the 28 Order to Show Cause, the Moving Defendants' motion to dismiss would be granted as
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1 unopposed pursuant to Civil Local Rule 7.1(f)(3)(c) and the action would be dismissed without 2 prejudice pursuant to Federal Rule of Civil Procedure 41(b). 3 To date Plaintiffs have not responded to the Order to Show Cause in any way. The Court

4 takes judicial notice that Plaintiffs' counsel Kent C. Wilson has filed more than 130 mortgage 5 cases in the United States District Court for the Southern District of California since April 28, 6 2009, none of which has yet been successful for the plaintiffs. In reviewing the cases Mr. 7 Wilson has filed that have been assigned to the undersigned, the Court has noted repeated 8 procedural problems, e.g., failure to serve defendants, failure to respond to motions to dismiss, 9 and failure to file amended complaints. (For a list of cases see Ambriz v. Accredited Home 10 Lenders, Inc., civil case no. 10cv460-L(WMc), Order to Show Cause Why Sanctions Should Not 11 Be Imposed on Attorney Kent Wilson, dated Aug. 24, 2010.) 12 As in many other cases he filed, Mr. Wilson failed to serve one of the Defendants in this

13 case. Accordingly, on August 24, 2010, Defendant American Home Network ("American 14 Home") was dismissed for failure to prosecute. (Docket no. 16.) 15 Also as in many other cases, in response to the Moving Defendants' motion to dismiss,

16 Plaintiffs' counsel filed neither an opposition nor a notice of non-opposition, as required by Civil 17 Local Rule 7.1(f)(3)(a). The rule is designed to relieve the court of the burden of reviewing the 18 merits of a motion without the benefit of full briefing, because such a review requires a 19 significant amount of scarce judicial time. Plaintiffs were given an opportunity to show cause 20 why the Moving Defendants' motion should not be granted as unopposed pursuant to Civil Local 21 Rule 7.1(f)(3)(c) and to file a proposed opposition to the motion if they intended to oppose it, or 22 a notice of non-opposition, if they did not. Plaintiffs did not file anything. The Moving 23 Defendants' motion to dismiss is therefore GRANTED as unopposed. Because no other 24 Defendants or claims remain in this case, the action is DISMISSED. 25 In the alternative, the action is DISMISSED pursuant to Federal Rule of Civil Procedure

26 41(b) for failure to prosecute. Rule 41(b) provides in pertinent part: "If the plaintiff fails to 27 prosecute or to comply with these rules or a court order, a defendant may move to dismiss the 28 action or any claim against it." District courts have the authority to dismiss sua sponte "cases
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1 that have remained dormant because of the inaction or dilatoriness of the parties seeking relief." 2 Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962); Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 3 1984). 4 To determine whether to dismiss an action for failure to prosecute or failure to comply

5 with a court order, the court must weigh five factors: 6 7 8 9 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (dismissal with prejudice for failure to 10 timely file amended petition). 11 "The public's interest in expeditious resolution of litigation always favors dismissal." (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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.

12 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Since May 2010, when they 13 unsuccessfully attempted to file an amended complaint,1 Plaintiffs have not taken any steps to 14 prosecute this action. The first factor therefore favors dismissal. See Pagtalunan, 291 F.3d at 15 642 ("failure to pursue the case for almost four months"). 16 With respect to the second factor, Plaintiff's failure to serve American Home, their

17 untimely and unsuccessful filing of an amended complaint, and failure to file an opposition or a 18 notice of non-opposition in response to the Moving Defendants' motion consumed some of the 19 court's time that could have been devoted to other cases on the docket, which are being diligently 20 prosecuted. See id. "It is incumbent upon the Court to manage its docket without being subject 21 to routine noncompliance of litigants such as [Plaintiffs]." Accordingly, this factor also weighs 22 in favor of dismissal. Id. 23 To make an adequate showing on the third factor, "a defendant must establish that

24 plaintiff's actions impaired defendant's ability to proceed to trial or threatened to interfere with 25 26 Plaintiffs' filing was rejected because it required leave to court or opposing party's 27 written consent pursuant to Federal Rule of Civil Procedure 15(a). (See Docket no. 8.) Subsequently, Plaintiffs have not attempted to comply with Rule 15 to get their proposed 28 amended complaint filed.
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1 the rightful decision of the case. . . . [P]endency of a lawsuit is not sufficiently prejudicial in and 2 of itself to warrant dismissal. Limited delays and the prejudice to a defendant from the pendency 3 of a lawsuit are realities of the system that have to be accepted, provided the prejudice is not 4 compounded by unreasonable delays." Id. (internal quotation marks and citations omitted). 5 However, the law presumes prejudice if the delay is unreasonable." In re Phenylpropanolamine 6 ("PPA") Products Liability Litigation, 460 F.3d 1217, 1227 (9th Cir.2006). "Unnecessary delay 7 inherently increases the risk that witnesses' memories will fade and evidence will become stale." 8 Pagtalunan, 291 F.3d at 643. "The presumption may be rebutted and if there is a showing that 9 no actual prejudice occurred, that fact should be considered when determining whether the 10 district court exercised sound discretion. A plaintiff may proffer an excuse for delay that, if 11 anything but frivolous, shifts the burden of production to the defendant to show at least some 12 actual prejudice." Id. at 1228 (internal citations and quotation marks omitted). Here, Plaintiffs 13 have made no attempt to respond to the Order to Show Cause and explain whey their case should 14 not be dismissed. Because Plaintiffs' delay remains unexplained, the presumption of prejudice 15 remains unrebutted. The third factor therefore also favors dismissal. See Pagtalunan, 291 F.3d 16 at 643. 17 With respect to the fourth factor, consideration of less drastic sanctions than dismissal

18 must occur after the party had violated an order. In the March 14, 2011 Order to Show Cause 19 Plaintiffs were put on notice that they had violated the rules of court and failed to prosecute. 20 Nevertheless, they were given an opportunity to give reasons why their case should not be 21 dismissed and belatedly file a proposed opposition to the Moving Defendants' motion to dismiss. 22 Plaintiffs were admonished that failure to timely comply with the order would result in 23 dismissal. They did not respond. Because Plaintiffs were given an opportunity to avoid 24 dismissal and chose not to take it, the fourth factor weighs in favor of dismissal. 25 Last, "[p]ublic policy favors disposition of cases on the merits." Pagtalunan, 291 F.3d at

26 463. This generally counsels against dismissal. See PPA Prod. Liab. Litig., 460 F.3d at 1228. 27 However, "a case that is stalled or unreasonably delayed by a party's failure to comply with 28 deadlines . . . cannot move forward toward resolution on the merits. [Therefore] this factor lends
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1 little support to a party whose responsibility it is to move a case toward disposition on the merits 2 but whose conduct impedes progress in that direction." Id. (internal citations and quotation 3 marks omitted). The last factor therefore does not counsel against dismissal. Based on the 4 foregoing, Plaintiffs' action is DISMISSED WITHOUT PREJUDICE pursuant to Federal 5 Rule of Civil Procedure 41(b). 6 Simultaneously with filing the complaint, Plaintiffs also recorded a Notice of Pendency of

7 Action referencing the instant action with respect to their real property. (Docket no. 2.) "[T]he 8 court shall order the notice expunged if the court finds that the pleading on which the notice is 9 based does not contain a real property claim." Cal. Code Civ. Proc. § 405.31; see also Id. § 10 405.5 & 28 U.S.C. § 1964 (state law lis pendens provisions apply in federal court). This action 11 has been dismissed in its entirety. Accordingly, no real property claims remain. Plaintiffs' 12 notice of lis pendens is therefore EXPUNGED. 13 14 15 DATED: March 24, 2011 16 17 COPY TO: 18 HON. NITA L. STORMES 19 UNITED STATES MAGISTRATE JUDGE 20 ALL PARTIES/COUNSEL 21 22 23 24 25 26 27 28
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IT IS SO ORDERED.

M. James Lorenz United States District Court Judge

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