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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CELIE DUENAS, et al.,

Case No.: 16-CV-2824 W (RBB)
Plaintiffs,

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v.

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ORDER GRANTING EX PARTE
APPLICATION FOR DISMISSAL
WITH PREJUDICE AS TO
DEFENDANT ANTOINE CANNON
[DOC. 8]

NATIONSTAR MORTGAGE
HOLDINGS, INC., et al.,

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Defendants.

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Pending before the Court is an ex parte application filed by Defendant Antoine

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Cannon seeking the entry of an order of dismissal of the case against him with prejudice.

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(Ex Parte Application [Doc. 8].) Despite the lapsing of two weeks since the filing of the

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ex parte application, Plaintiffs have not filed an opposition, nor have they requested

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additional time to do so.

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Federal Rule of Civil Procedure 41(b) provides that “[i]f the plaintiff fails . . . to

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comply with these rules or a court order, a defendant may move to dismiss the action or

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any claim against it. Unless the dismissal order states otherwise, a dismissal under this

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subdivision (b) . . . operates as an adjudication on the merits.” “A Rule 41(b) dismissal

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‘must be supported by a showing of unreasonable delay.’ ” Omstead v. Dell, Inc., 594

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F.3d 1081, 1084 (9th Cir. 2010) (Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.

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1986)). The Court should consider the following factors:

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(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.

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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) (formatting altered from

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original).

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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

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did not oppose that motion. The Court granted the motion on April 24, 2017, dismissing

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the Complaint as to Defendant Cannon. (April 24, 2017 Order [Doc. 7].) The Court set a

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deadline of Monday, May 8, 2017 for Plaintiffs to file an amended complaint. (Id.) To

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date, Plaintiff have not filed an amended complaint—nor have they requested additional

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time in which to do so. They have simply ceased to prosecute this matter as to Defendant

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Cannon. This is an unreasonable delay. See Omstead, 594 F.3d at 1084.

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Four of the five Henderson factors favor a dismissal of Defendant Cannon from
this action with prejudice. See 779 F.2d at 1423.

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The risk of prejudice to Cannon, the public’s interest in expeditious resolution of

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litigation, and the Court’s need to manage its docket all favor dismissal with prejudice.

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As noted, Cannon filed his motion to dismiss in January of this year, with a hearing date

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in February. Plaintiffs did not oppose. They then allowed the Court’s deadline to amend

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the complaint to lapse. When Cannon filed an ex parte application seeking dismissal

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with prejudice, Plaintiffs did not respond to that either. It is now mid-June. Evidence

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indicates that repeated attempts on the part of Defendant Cannon’s attorney to contact

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Plaintiff’s counsel—by email, fax, and phone—have yielded no response. (See Salas

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Decl. [Doc. 8-3].) Forcing Cannon to remain a defendant in a lawsuit with Plaintiffs who

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will not respond or participate would prejudice his interests. And it would be neither just

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nor efficient for members of the public to have to wait to have their motions heard while

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Plaintiffs repeatedly miss deadlines and decline to prosecute the case.

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Moreover, there would appear to be no less-drastic alternative available. As the

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Complaint has already been dismissed with leave to amend as to Defendant Cannon upon

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Plaintiffs’ February failure to respond (See April 24, 2017 Order [Doc. 7]), there are no

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claims left pending against him. A dismissal with prejudice pursuant to Rule 41(b) is the

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only avenue left available. Though public policy favors disposition of cases on their

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merits, that policy is difficult to implement when the plaintiff declines to participate in

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litigation.

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The Court GRANTS Defendant’s ex parte application. [Doc. 8.]

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Defendant Cannon is DISMISSED WITH PREJUDICE.

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IT IS SO ORDERED.

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Dated: June 21, 2017

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