Duenas et al v. Nationstar Mortgage Holdings, Inc. et al

Filing 9

ORDER Granting 8 Ex Parte Motion to Dismiss With Prejudice as to Defendant Antoine Cannon. Signed by Judge Thomas J. Whelan on 6/21/2017. (jao)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CELIE DUENAS, et al., Case No.: 16-CV-2824 W (RBB) Plaintiffs, 12 13 v. 14 ORDER GRANTING EX PARTE APPLICATION FOR DISMISSAL WITH PREJUDICE AS TO DEFENDANT ANTOINE CANNON [DOC. 8] NATIONSTAR MORTGAGE HOLDINGS, INC., et al., 15 Defendants. 16 17 18 Pending before the Court is an ex parte application filed by Defendant Antoine 19 Cannon seeking the entry of an order of dismissal of the case against him with prejudice. 20 (Ex Parte Application [Doc. 8].) Despite the lapsing of two weeks since the filing of the 21 ex parte application, Plaintiffs have not filed an opposition, nor have they requested 22 additional time to do so. 23 Federal Rule of Civil Procedure 41(b) provides that “[i]f the plaintiff fails . . . to 24 comply with these rules or a court order, a defendant may move to dismiss the action or 25 any claim against it. Unless the dismissal order states otherwise, a dismissal under this 26 subdivision (b) . . . operates as an adjudication on the merits.” “A Rule 41(b) dismissal 27 ‘must be supported by a showing of unreasonable delay.’ ” Omstead v. Dell, Inc., 594 28 1 16-CV-2824 W (RBB) 1 F.3d 1081, 1084 (9th Cir. 2010) (Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 2 1986)). The Court should consider the following factors: 3 4 5 (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 the defendants; (4) the public policy favoring disposition of cases on their merits[;] and (5) the availability of less drastic sanctions. 6 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) (formatting altered from 7 original). 8 9 On January 11, 2017, Defendant Cannon filed a motion to dismiss. (Def.’s Mot. to Dismiss [Doc. 6].) Despite the lapsing of the February 20, 2017 hearing date, Plaintiff 10 did not oppose that motion. The Court granted the motion on April 24, 2017, dismissing 11 the Complaint as to Defendant Cannon. (April 24, 2017 Order [Doc. 7].) The Court set a 12 deadline of Monday, May 8, 2017 for Plaintiffs to file an amended complaint. (Id.) To 13 date, Plaintiff have not filed an amended complaint—nor have they requested additional 14 time in which to do so. They have simply ceased to prosecute this matter as to Defendant 15 Cannon. This is an unreasonable delay. See Omstead, 594 F.3d at 1084. 16 17 Four of the five Henderson factors favor a dismissal of Defendant Cannon from this action with prejudice. See 779 F.2d at 1423. 18 The risk of prejudice to Cannon, the public’s interest in expeditious resolution of 19 litigation, and the Court’s need to manage its docket all favor dismissal with prejudice. 20 As noted, Cannon filed his motion to dismiss in January of this year, with a hearing date 21 in February. Plaintiffs did not oppose. They then allowed the Court’s deadline to amend 22 the complaint to lapse. When Cannon filed an ex parte application seeking dismissal 23 with prejudice, Plaintiffs did not respond to that either. It is now mid-June. Evidence 24 indicates that repeated attempts on the part of Defendant Cannon’s attorney to contact 25 Plaintiff’s counsel—by email, fax, and phone—have yielded no response. (See Salas 26 Decl. [Doc. 8-3].) Forcing Cannon to remain a defendant in a lawsuit with Plaintiffs who 27 will not respond or participate would prejudice his interests. And it would be neither just 28 2 16-CV-2824 W (RBB) 1 nor efficient for members of the public to have to wait to have their motions heard while 2 Plaintiffs repeatedly miss deadlines and decline to prosecute the case. 3 Moreover, there would appear to be no less-drastic alternative available. As the 4 Complaint has already been dismissed with leave to amend as to Defendant Cannon upon 5 Plaintiffs’ February failure to respond (See April 24, 2017 Order [Doc. 7]), there are no 6 claims left pending against him. A dismissal with prejudice pursuant to Rule 41(b) is the 7 only avenue left available. Though public policy favors disposition of cases on their 8 merits, that policy is difficult to implement when the plaintiff declines to participate in 9 litigation. 10 The Court GRANTS Defendant’s ex parte application. [Doc. 8.] 11 Defendant Cannon is DISMISSED WITH PREJUDICE. 12 13 IT IS SO ORDERED. 14 15 Dated: June 21, 2017 16 17 18 19 20 21 22 23 24 25 26 27 28 3 16-CV-2824 W (RBB)

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