Calub et al v. Bank of America et al
Filing
44
ORDER DISMISSING CASE WITH PREJUDICE: "In accordance with the foregoing, the Complaint is HEREBY DISMISSED WITH PREJUDICE. In light of this Court's ruling, Defendants Bank of America, N.A., BAC Home Loans Servicing, LP, and Countrywide Home Loans, Inc.'s Motion to Dismiss Action Pursuant to Rule 41(b), filed June 23, 2011, [dkt. no. 42,] is DENIED as MOOT. IT IS SO ORDERED." Signed by Distict JUDGE LESLIE E. KOBAYASHI on July 1, 2011. (bbb, )CERTIFICA TE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ISIDRO TAON CALUB AND MYRNA
VICENTE CALUB,
)
)
)
)
Plaintiff,
)
vs.
)
)
BANK OF AMERICA, N.A., ET
)
)
AL.,
)
)
Defendants.
_____________________________ )
CIVIL NO. 10-00139 LEK-BMK
ORDER DISMISSING CASE WITH PREJUDICE
On May 31, 2011, the Court granted in part and denied
in part Defendants Bank of America, N.A., BAC Home Loans
Servicing, LP, and Countrywide Home Loans, Inc.’s (collectively
“Defendants”) Motion to Dismiss First Amended Complaint
(“Motion”), filed on February 28, 2011.
[Dkt. no. 40.]
The
Court’s May 31, 2011 Order (“Order”) dismissed Plaintiffs
Isidro Taon Calub and Myrna Vicente Calub’s (“Plaintiffs”) First
Amended Complaint without prejudice, and ordered Plaintiffs to
file their Second Amended Complaint by June 20, 2011.
In the
Order, the Court cautioned Plaintiffs that, if they did not file
a Second Amended Complaint by June 20, 2011, the Court would
dismiss the claims against Defendants with prejudice.
Plaintiffs
did not file a Second Amended Complaint by June 20, 2011.
Federal Rule of Civil Procedure 16(f)(1) provides, in
pertinent part:
On motion or on its own, the court may issue any
just orders, including those authorized by Rule
37(b)(2)(A)(ii)-(vii), if a party or its attorney:
. . . .
(C) fails to obey a scheduling or other
pretrial order.
Rule 37(b)(2)(A)(v) provides that the court may “dismiss[] the
action or proceeding in whole or in part[.]”
Fed. R. Civ. P.
37(b)(2)(A)(v).
Plaintiffs failed to obey the Court’s May 31, 2011
Order.
After weighing the five dismissal factors set forth in
Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir.
2000),1 the Court finds that the public interest in expeditious
resolution of this litigation and the Court’s interest in
managing the docket strongly outweigh the policy favoring
disposition of cases on the merits.
Moreover, the defendants
will not be prejudiced by dismissal, and there are no less
drastic alternatives available at this time.
In accordance with the foregoing, the Complaint is
HEREBY DISMISSED WITH PREJUDICE.
In light of this Court’s ruling, Defendants Bank of
1
The Ninth Circuit has delineated five factors a district
court must weigh in determining whether to dismiss a case for
failure to comply with a court order: “1) the public interest;
2) the court’s need to manage the docket; 3) the risk of
prejudice to the defendant; 4) the public policy favoring
disposition of cases on their merits; and 5) the availability of
less drastic alternatives.” Bautista, 216 F.3d at 841 (citation
omitted).
2
America, N.A., BAC Home Loans Servicing, LP, and Countrywide Home
Loans, Inc.’s Motion to Dismiss Action Pursuant to Rule 41(b),
filed June 23, 2011, [dkt. no. 42,] is DENIED as MOOT.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 1, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
ISIDRO TAO CALUB, ET AL. V. BANK OF AMERICA, ET AL; CIVIL NO. 1000139 LEK-BMK; ORDER DISMISSING CASE WITH PREJUDICE
3
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