Conley et al v. The Bank of New York Mellon Corporation et al
Filing
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ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS re: 17 Findings and Recommendation to Dismiss this Action. Signed by JUDGE DAVID ALAN EZRA on 6/6/2012. (afc)CERTIFICATE OF SERVICEParti cipants 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
MARK J. CONLEY and SUSAN B. )
CONLEY,
)
)
Plaintiffs,
)
)
vs.
)
)
BANK OF NEW YORK MELLON )
CORPORATION; BANK OF
)
AMERICA, N.A.; JOHN DOES 1- )
10; JANE DOES 1-10; DOE
)
PARTNERSHIPS 1-10; DOE
)
CORPORATIONS 1-10; and DOE )
ENTITIES 1-10,
)
)
Defendants.
)
_____________________________ )
CV. NO. 11-00582 DAE-BMK
ORDER ADOPTING MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATIONS
On May 9, 2012, Magistrate Judge Barry M. Kurren issued the instant
Findings and Recommendation, to which no objections have been filed. After
reviewing the record, the Court adopts the Magistrate Judge’s Findings and
Recommendation. (Doc. # 17.)
On September 23, 2011, Plaintiffs Mark J. Conley and Susan B.
Conley (collectively, “Plaintiffs”) filed a Complaint against Defendants The Bank
of New York Mellon Corporation (“BONY”) and Bank of America N.A.
(“BANA”) (collectively, “Defendants”), as well as John Does 1-10, Jane Does 110, Doe Partnerships 1-10, Doe Corporations 1-10, and Doe Entities 1-10
(“Compl.,” Doc #1.)
Plaintiffs alleged two causes of action in the Complaint:
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Count I: “Violation of the Truth in Lending Act” (Id. ¶¶ 14–22.)
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Count II: Unconscionability (Id. ¶¶ 23–26.)
According to the Complaint, Plaintiffs obtained two loans from
Countrywide Home Loans Inc. that were secured by real property located at 72
Kahana Ridge Dr., Lahaina, Hawaii 96761. (Id. ¶ 8.) Plaintiffs assert that BANA
is the servicer of the first and second mortgages and that BONY became the new
lender for the first mortgage “between the establishment with Countrywide Home
Loans, Inc. in 2005 and September 8, 2010.” (Id. ¶¶ 9, 16.) Plaintiffs further
assert that BONY became the new lender for the second mortgage “between the
establishment with Countrywide Home Loans, Inc. in 2005 and September 23,
2010.” (Id. ¶ 17.) The Complaint alleges that Plaintiffs were never notified of
BONY’s assignment of the mortgages. (Id. ¶ 18.) The Complaint also alleges that
BANA would “preempt [Plaintiffs’] right to buy property insurance for the
Property by setting up an escrow account and charging far in excess over the
market value for said insurance.” (Id. ¶ 24.)
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On November 8, 2011, Defendants filed a Motion to Dismiss
Plaintiffs’ Complaint. (Doc. #7) On January 19, 2012, Plaintiffs filed a
Memorandum in Opposition to Defendants’ Motion to Dismiss. (Doc. # 14.) On
January 27, 2012, Defendants filed a Reply. (Doc. # 15.) On February 7, 2012,
the Court issued an Order: (1) Granting Defendants’ Motion to Dismiss; (2)
Granting Leave to Amend; and (3) Vacating the Hearing. (Doc. # 16.) The Court
advised Plaintiff as follows:
Plaintiffs are granted leave to amend no later than thirty (30) days from the
filing of this Order. Failure to do so and to cure the pleading deficiencies
may result in dismissal of this action with prejudice. Plaintiffs are advised
that the amended complaint must clearly identify the specific causes of
action alleged and the factual allegations upon which those claims are based.
(Id. at 13.) On May 9, 2012, Magistrate Judge Kurren issued the instant Findings
and Recommendation to dismiss the action because Plaintiffs have not filed an
amended complaint. (Doc. # 17.) To date, Plaintiffs have not filed an amended
complaint nor taken further action in these proceedings.
DISCUSSION
Federal Rule of Civil Procedure (“Rule”) 41(b) provides as follows:
[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
merits.
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Fed. R. Civ. P. 41(b). Rule 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 or failure to
comply with a court order, the court must weigh the following factors: “(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. at 642 (citing Ferdik v. Bonzelet, 963
F.2d 1258, 1260–61 (9th Cir. 1992)).
I.
Expeditious Resolution and Need to Manage Docket
The Court informed Plaintiffs that they had to file an amended
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complaint no later than thirty (30) days from the filing of the February 7, 2012
Court Order. (See Doc. # 16 at 13.) Plaintiffs’ failure to amend their complaint
hinders the Court’s ability to move this case forward and indicates that Plaintiffs
do not intend to prosecute this action. 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 plainly favors dismissal.
II.
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 no excuse for failing to comply with a
court’s order, the risk of prejudice to the opposing party weighs in favor of
dismissal. See Yourish, 191 F.3d at 991–92.
III.
Availability of Less Drastic Alternatives
The next factor, the availability of less drastic alternatives, also
weighs in favor of dismissal. Although Plaintiffs had failed to state a claim upon
which relief could be granted, the Court sought to avoid dismissing the Complaint
with prejudice by granting Plaintiffs leave to amend their Complaint. See
Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (“The district court
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need not exhaust every sanction short of dismissal before finally dismissing a case,
but must explore possible and meaningful alternatives.”). Plaintiffs have given this
Court no indication that they intend to pursue this action. In fact, to date Plaintiffs
have taken no further action in these proceedings. This Court has attempted to
explore “possible and meaningful alternatives to dismissal.” Id. Plaintiffs have
been non-responsive and noncompliant with respect to these alternatives. Given
Plaintiffs’ failure to amend their complaint and pursue this action, there is no
appropriate alternative to dismissal.
IV.
Public Policy
Public policy favoring the disposition of cases on their merits
ordinarily weighs against dismissal. It is, however, a plaintiff’s responsibility to
move towards disposition at a reasonable pace 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 this responsibility despite the Court’s
order to the contrary. Given these circumstances, the public policy favoring the
resolution of disputes on the merits does not outweigh the other factors favoring
dismissal.
CONCLUSION
For these reasons, the Court adopts the Magistrate Judge’s Findings
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and Recommendation to Dismiss Plaintiffs’ Action. The Clerk of the Court is
directed to close this case.
IT IS SO ORDERED.
Dated: Honolulu, Hawaii, June 6, 2012.
_____________________________
David Alan Ezra
United States District Judge
Conley v. Bank of New York Mellon Corp. et al., Cv. No. 11-00582 DAE-BMK;
ORDER ADOPTING MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATIONS
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