Khalid v. Bank of America, N.A.
ORDER DISMISSING CASE. Signed by JUDGE DERRICK K. WATSON on 10/29/2015. ~ The Clerk ofthe Court is directed to close this case. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receiv e 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 HAWAI`I
LUDMILA KHALID and SYED
CIVIL NO. 15-00182 DKW-KSC
ORDER DISMISSING CASE
BANK OF AMERICA, N.A.; JOHN
DOES 1-10; JANE DOES 1-10; DOE
PARTNERSHIPS 1-10; DOE
CORPORATIONS 1-10; DOE
ENTITIES 1-10; and DOE
GOVERNMENTAL UNITS 1-10,
ORDER DISMISSING CASE
On April 13, 2015, Plaintiffs Ludmila and Syed Khalid, proceeding pro se,
filed a complaint against Defendant Bank of America, N.A. (“BANA”) asserting
various federal and state law claims arising from an unsuccessful refinancing of a
mortgage relating to certain real property on the island of Maui, on which BANA
foreclosed in 2010. Dkt. No. 1-2. On September 30, 2015, the Court granted
BANA’s Motion to Dismiss, but also permitted the Khalids leave to file an
amended complaint by October 23, 2015. Dkt. No. 22 at 11-12. As of the date of
this order, the Khalids have not filed an amended complaint. Because the Khalids
have failed to comply with the Court’s order, this action is DISMISSED.
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 or her to file an amended pleading within a
specified time period. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002).
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. at 642 (citing Ferdik v. Bonzelet, 963 F.2d
1258, 1260–61 (9th Cir. 1992)). Upon careful consideration of these factors, the
Court concludes that dismissal is warranted under the circumstances.
Expeditious Resolution and Need to Manage Docket
The Court’s September 30, 2015 Order was clear: “The Khalids are granted
until October 23, 2015 to file an amended complaint in accordance with this
Order. Failure to do so will result in the closure of this case without further
notice.” Dkt. No. 22 at 11-12. The Court unambiguously advised the Khalids that
they must file an amended complaint by October 23, 2015, or risk dismissal of the
action. The Khalids’ failure to do so hinders the Court’s ability to move this case
forward and indicates that the Khalids 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.”). Accordingly, the public’s interest in expeditious resolution of
litigation and the court’s need to manage its docket both favor 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). 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. Here, the Khalids offer no excuse, much less an
unsatisfactory one, to explain their failure to file an amended complaint. This
factor favors dismissal.
Availability of Less Drastic Alternatives
The Court attempted to avoid outright dismissal of this action by giving the
Khalids 23 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 the
Khalids’ failure to meaningfully participate in their own litigation.
Although public policy favors the disposition of cases on their merits, it is
the responsibility of the complaining party to prosecute the action 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). The Khalids have failed to
discharge these responsibilities, despite the Court’s express warning about the
possibility of dismissal. The Court acknowledges that public policy favors
disposing of cases on their merits. However, because four of the Ferdik factors
favor dismissal, this lone factor is outweighed by the others.
For the foregoing reasons, the Court DISMISSES this action. The Clerk of
the Court is directed to close this case.
IT IS SO ORDERED.
DATED: October 29, 2015 at Honolulu, Hawai‘i.
Khalid v. Bank of America, N.A., et al.; CV 15-00182 DKW-KSC; ORDER
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