Leischner et al v. Bank of America Corp. et al

Filing 15

ORDER DISMISSING CASE. This matter is dismissed with prejudice. 3 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Nationstar Mortgage, LLC, 8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Bank of America, N.A., Bank of America Corp. are DENIED as moot. Signed by Magistrate Judge Timothy J. Cavan on 11/28/2017. (Hard copy mailed to pro se plaintiffs.) (JDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
MARK LEISCHNER and TAMMY
LEISCHNER,

CV 17-49-BLG-TJC

Plaintiffs,

ORDER

vs.
BANK OF AMERICA CORP.; BANK
OF AMERICA, N.A., as successor by
merger to BAC Home Loans Servicing,
f/k/a Country Wide Homes Loans
Servicing, LP; and NATIONSTAR
MORTGAGE, LLC,
Defendants.
Before the Court are two motions to dismiss, one filed on April 24, 2017, by
defendant Nationstar Mortgage, LLC (“Nationstar”) (Doc. 3) and another filed on
June 27, 2017, by defendants Bank of America Corp. and Bank of America, N.A.
(collectively, “BANA”) (when referring to BANA and Nationstar, “Defendants”)
(Doc. 8). Each motion seeks the dismissal in full of the Complaint and Demand
for Jury Trial (Doc. 6) (“Complaint”) filed by plaintiffs Mark Leischner and
Tammy Leischner (collectively, “Plaintiffs”). For the reasons that follow, the
Court finds that other circumstances command the dismissal of this case, and
therefore denies Defendants’ motions as moot.

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I.

Pertinent Facts
Plaintiff Mark Leischner previously brought an action against these same

Defendants in the Montana Thirteenth Judicial District Court in September 2014.
(Doc. 4-1.) The action was promptly removed to this Court (Doc. 4-2), and
Defendant BANA moved to dismiss the complaint. (Doc. 4-3). Without ever
responding to BANA’s motion, Mark Leischner ultimately filed a motion to
dismiss his complaint, without prejudice. (Doc. 4-7). The motion was granted on
February 4, 2015. (Doc. 4-8.)
Almost two years later, Plaintiffs filed their present Complaint in the
Montana Thirteenth Judicial District Court on January 13, 2017. (Doc. 1-1.) The
present Complaint is nearly identical to the 2014 complaint. Defendant Nationstar
again removed the case to this Court on April 24, 2017 (Doc. 1), and immediately
filed its Motion to Dismiss (Doc. 3; “Nationstar Motion”). BANA filed its Motion
to Dismiss (Doc. 8; “BANA Motion”) on June 27, 2017.
Under the Local Rules of Procedure for the District of Montana (“L.R.”),
Plaintiffs’ responses were due within 21 days after the motions were filed. L.R.
7.1(d)(1)(B)(i). Plaintiffs have not responded to either motion.
The next noteworthy filing occurred on August 7, 2017, when the Clerk of
Court filed the various consent forms evincing the parties’ agreement to consent to
the jurisdiction of the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c)
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and Fed. R. Civ. P. 73. (Doc. 12.) That docket entry is significant because it
contains the signatures of both Plaintiffs, indicating that they have received
correspondence from the Court.
On September 21, 2017, nearly five months after the Nationstar Motion and
three months after the BANA Motion, the Court entered an Order requiring
Plaintiffs to show cause, on or before October 5, 2017, why the Court should not
deem Defendants’ motions to be well-taken in accordance with L.R.
7.1(d)(1)(B)(ii), which provides that “failure to file a response brief may be
deemed an admission that the motion is well-taken.” (Doc. 14.) The Court’s
Order explicitly warned Plaintiffs that failure to respond to the Order may result in
the dismissal of this matter with prejudice. (Id. at 2.) Plaintiffs’ response to the
Court’s Order is now nearly two months overdue, and Plaintiffs still have not
responded to the Court’s order, or to either of Defendants’ motions.
II.

Legal Standard
Fed. R. Civ. P. 41(b) authorizes the Court to dismiss an action “[i]f the

plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure]
or a court order[.]” Even though the rule states that a defendant may move for
dismissal under the specified circumstances, it is well-settled that the Court may
dismiss a case on its own motion without awaiting a defense motion. See Link v.

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Wabash R.R., 370 U.S. 626, 633 (1962); Hells Canyon Preservation Council v.
United States Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005).
In considering dismissal under Rule 41(b), a court must weigh five 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 the defendants; (4) the availability
of less drastic alternatives; and (5) the public policy favoring disposition of cases
on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002), cert.
denied, (2003) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
III.

Discussion
A.

Expeditious Resolution

“The public’s interest in expeditious resolution of litigation always favors
dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1990).
Here, Plaintiffs have given no reason for their failure to respond to Defendants’
motions, failure to comply with the Court’s show-cause Order, or failure to
prosecute this action. This factor weighs in favor of dismissal.
B.

Docket Management

“The trial judge is in the best position to determine whether the delay in a
particular case interferes with docket management and the public interest.”
Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 990). As noted by the
Ninth Circuit, “[i]t is incumbent upon us to preserve the district courts’ power to
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manage their docket without being subject to the endless vexatious noncompliance
of litigants . . . .” Ferdik, 963 F.2d at 1261.
Litigants who do not prosecute their cases and do not obey the Court’s
orders disrupt the Court’s handling of other matters by consuming time and
resources needed by litigants who responsibly manage their cases. The Court
cannot manage its docket if a party ignores Court orders and fails to communicate
with the Court. The Plaintiffs have been given months to comply with the local
rules, and almost two months to comply with the Court’s order. Under the
circumstances of this case, this factor weighs in favor of dismissal.
C.

Prejudice to Defendants

“To prove prejudice, a defendant must establish that plaintiff’s actions
impaired defendant’s ability to proceed to trial or threatened to interfere with the
rightful decision of the case.” Pagtalunan, 291 F.3d at 642 (citing Malone v.
United States Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987)). However, “[t]he
law…presumes prejudice from unreasonable delay.” In re Phenylpropanolamine
(PPA) Products Liability Litigation, 460 F.3d 1217, 1227 (9th Cir. 2006).
“Unnecessary delay inherently increases the risk that witnesses’ memories will
fade and evidence will become stale.” Pagtalunan, 291 F.3d at 642 (citing Sibron
v. New York, 392 U.S. 40, 57 (1968)).

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Though Defendants have not attempted to prove that they have been
prejudiced by Plaintiffs’ failure to prosecute, there is a rebuttable presumption
under the law that unreasonable delay results in prejudice. The Court gave
Plaintiffs the opportunity to explain why they did not timely respond to
Defendants’ motions. Plaintiffs did not take advantage of that opportunity.
In addition, Defendants have now been sued in two separate, but nearly
identical lawsuits. They have expended substantial resources in defending the
actions, and in preparing and filing their motions to dismiss. To date, the Plaintiffs
have failed to respond in any way, leaving the Defendants as the only active
participants in this case. The Defendants have clearly been prejudiced by the
Plaintiffs’ successive filings and dilatory actions.
Accordingly, the Court considers Plaintiffs’ failure to prosecute their case
to constitute an unreasonable delay, and finds this factor weighs in favor of
dismissal.
D.

Alternatives

“[W]arning a plaintiff that failure to obey a court order will result in
dismissal can suffice to meet the ‘consideration of alternatives’ requirement.”
Malone, 833 F.2d at 132. Here, the Court attempted the less-drastic measure of
allowing Plaintiffs to show cause as to why they had not responded to Defendants’
motions, when it could have deemed those motions to be well-taken for Plaintiffs’
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lack of response. That order specifically warned Plaintiffs that failure to respond
could result in dismissal of this case with prejudice. (Doc. 14 at 2.) At this point,
Plaintiffs have both (a) failed to prosecute this case and (b) failed to comply with a
Court order after having been warned that such failure could result in dismissal. If
the Plaintiffs simply choose to ignore the rules of procedure and orders from this
Court, there are no viable alternatives.
The Court understands its obligations to pro se litigants and has endeavored
to fulfill them in this case. Plaintiffs were given the time afforded by L.R. 7.1 to
respond to Defendants’ motions, additional time to explain to the Court their
failure to do so, and additional time until now to accomplish either of those tasks.
They have not complied. This factor weighs in favor of dismissal.
E.

Disposition on the Merits

Finally, public policy favors the disposition of cases on their merits.
Pagtalunan, 291 F.3d at 643 (citing Hernandez v. City of El Monte, 138 F.3d 393,
399 (9th Cir. 1998)). However, the Ninth Circuit “[has] also recognized that this
factor lends little support to a party whose responsibility it is to move a case
toward disposition on the merits but whose conduct impedes progress in that
direction.” In re PPA, 460 F.3d at 1228. Since that is precisely the situation here,
this factor does not weigh heavily in Plaintiffs’ favor.

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IV.

Conclusion
While the policy in favor of disposition on the merits may weigh marginally

against dismissal under Rule 41(b), Plaintiffs’ failure to prosecute this case largely
neutralizes that factor, and the remaining four factors clearly weigh in favor of
dismissal.
Therefore, the Court finds that this case should be dismissed with prejudice
pursuant to Fed. R. Civ. P. 41(b) for Plaintiffs’ failure to prosecute their case, and
their failure to comply with a Court order. Accordingly,
IT IS ORDERED that:
(1)

This matter is dismissed with prejudice;

(2)

Defendants’ motions to dismiss (Docs. 3, 8) are DENIED as moot;

(3)

The Clerk of Court shall close this matter and enter judgment pursuant

and

to Rule 58 of the Federal Rules of Civil Procedure.
DATED this 28th day of November, 2017.

_______________________________
TIMOTHY J. CAVAN
United States Magistrate Judge

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