Whitehead et al v. Bank of America Corporation et al
ORDER DISMISSING ACTION. Signed by JUDGE DAVID ALAN EZRA on 6/21/2011. (afc) CERTIFICATE 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
JAMES MICHAEL WHITEHEAD
and SIUAFU WHITEHEAD,
BANK OF AMERICA
BANK TRUST COMPANY
AMERICAS; GMAC MORTGAGE,
LLC; JOHN DOES 1–10; JANE
DOES 1–10, DOE PARTNERSHIPS
1–10; DOE CORPORATIONS 1–10;
AND DOE ENTITIES 1–10,
CV. NO. 10-00615 DAE-BMK
ORDER DISMISSING ACTION
On October 10, 2010, Plaintiffs James Michael Whitehead and Siuafu
Whitehead (“Plaintiffs”) filed a Complaint against Defendants Bank of America
Corporation; Deutsche Bank Trust Company Americas; GMAC Mortgage, LLC;
John Does 1–10; Jane Does 1–10; Doe Partnerships 1–10; Doe Corporations 1–10;
and Doe Entities 1–10 (collectively, “Defendants”) asserting claims pursuant to the
Real Estate Settlement Procedures Act of 1974, 12 U.S.C. § 2501, et seq. and state
law. (Doc # 1.)
On May 13, 2011, the Court filed an Order: (1) Granting Defendant
BofA’s Motion to Dismiss; (2) Granting Defendant GMAC’s Motion for Joinder;
(3) Dismissing Without Prejudice Plaintiffs’ Complaint; and (4) Granting Plaintiffs
Leave to Amend the Complaint. (Doc. # 36.) The Court granted Plaintiffs leave to
amend their Complaint no later than thirty days from the filing date of the May 13,
2011 Order. (Id. at 10.)
Plaintiffs were expressly notified that failure to timely file an
amended complaint correcting the noted defects in their complaint would result in
dismissal of their action for failure to state a claim. (Id.) Despite the Court’s
directive, Plaintiffs still have not filed an amended complaint.
Federal Rule of Civil Procedure 41(b) grants district courts the
authority to sua sponte dismiss actions for failure to prosecute or for failure to
comply with court orders. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-31
(1962) (“The power to invoke this sanction is necessary in order to prevent undue
delays in the disposition of pending cases and to avoid congestion in the calendars
of the District Courts.”). The court has discretion to dismiss a plaintiff’s action for
failure to comply with an order requiring him to file an amended pleading within a
specified time period. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002)
(discussing factors a court must weigh to determine whether to dismiss a claim for
failure to comply with a court order).
Before dismissing an action for failure to prosecute, the court must
weigh: “(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.” Id., 291 F.3d at 642
(citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
Expeditious Resolution and Need to Manage Docket
The Court advised Plaintiffs that they must file an amended complaint
within 30 days of the filing of the May 13, 2011 Order, or risk dismissal of the
action with prejudice. See (Doc. #36 at 10.) Plaintiffs’ failure to do so hinders the
Court’s ability to move this case forward and indicates that Plaintiffs do not intend
to litigate this action diligently. See Yourish v. California Amplifier, 191 F.3d
983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of
litigation always favors dismissal.”). This factor favors dismissal.
Prejudice to Defendants
The risk of prejudice to a defendant is related to the plaintiff’s reason
for failure to prosecute an action. See Pagtalunan, 291 F.3d at 642 (citing Yourish,
191 F.3d at 991). Plaintiffs offer no excuse or explanation for their failure to file
an amended complaint. When a party offers a poor excuse for failing to comply
with a court’s order, the prejudice to the opposing party is sufficient to favor
dismissal. See Yourish, 191 F.3d at 991-92.
Availability of Less Drastic Alternatives
The Court attempted to avoid outright dismissal of this action by
giving Plaintiffs thirty days leave to amend. See Henderson v. Duncan, 779 F.2d
1421, 1424 (9th Cir.1986) (“The district court need not exhaust every sanction
short of dismissal before finally dismissing a case, but must explore possible and
meaningful alternatives.”). Alternatives to dismissal are not appropriate given
Plaintiffs’ failure to meaningfully participate in their own litigation.
Public policy favoring the disposition of cases on their merits
ordinarily weighs against dismissal. It is the responsibility of the moving party to
prosecute the action at a reasonable pace, however, and to refrain from dilatory and
evasive tactics. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir.
1991). Plaintiffs have failed to discharge their responsibility to prosecute this
action despite the Court’s express warning about the possibility of dismissal.
Under these circumstances, the public policy favoring the resolution of disputes on
the merits does not outweigh Plaintiffs’ failure to file an amended complaint.
The Court concludes that dismissal of this action is warranted under
Rule 41(b), which states:
[A] dismissal under this subdivision (b) and any dismissal not under
this rule-except one for lack of jurisdiction, improper venue, or failure
to join a party under Rule 19-operates as an adjudication on the
Fed. R. Civ. P. 41(b).
These exceptions do not apply here and this dismissal is with
prejudice. See Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002)
(dismissal interpreted as an adjudication on the merits unless one of the Rule 41(b)
exceptions applies); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 714
(9th Cir. 2001) (dismissal for failure to prosecute is treated as an adjudication on
the merits) (citation omitted).
For the aforementioned reasons, the Court DISMISSES this action.
The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
Dated: Honolulu, Hawaii, June 21, 2011.
David Alan Ezra
United States District Judge
Whitehead v. Bank of America Corporation et al., Cv. No. 10-00615 DAE-BMK;
ORDER DISMISSING ACTION
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