Bernabe v. State of Nevada et al

Filing 26

ORDER dismissing and closing case. Signed by Judge Jennifer A. Dorsey on 6/5/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Clara L. Bernabe,

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2:17-cv-00792-JAD-CWH

Plaintiff

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Order Dismissing and
Closing Case

v.

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State of Nevada, Clark County, Ditech
Financial, LLC,

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Defendants
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On May 22, 2017, the court held oral argument on defendants’ motions to dismiss.1

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Plaintiff, who appears to be filing documents with a “sovereign citizen” theme, filed a “writ of

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erroe qua corum nobis residant,” challenging this court’s authority to set a hearing on the motions

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to dismiss2 (arguing primarily that the undersigned is a “magistrate” without authority), and then

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she failed to appear at the scheduled hearing. At the hearing, I granted the motions to dismiss on

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their merits with leave to amend and gave Bernabe ten days to amend her complaint or have this

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case dismissed.3
Bernabe did not file an amended complaint by the ten-day deadline. She did file a “Writ

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of Contempt” in which she claims to be “the court” and purports to hold the undersigned in

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contempt of court.4 Bernabe’s attempts and arguments are without merit, and because she failed

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to amend her complaint by the ten-day deadline, I dismiss this action and direct the Clerk of

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ECF Nos. 5, 8, 12 (motions); 17 (notice of hearing); 7, 11, 14 (Klingele notices); 24 (minutes of
hearing).

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ECF No. 22.

ECF No. 24 (the minute order states, “Plaintiff has 10 days to file an amended complaint.
Failure to do so will result in dismissal of this case.”).
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ECF No. 25 at 8.

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Court to close this case.

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District courts have the inherent power to control their dockets and “[i]n the exercise of

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that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.5 A

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court may dismiss an action based on a party’s failure to prosecute an action, failure to obey a

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court order, or failure to comply with local rules.6 In determining whether to dismiss an action

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on one of these grounds, the court must consider: (1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the

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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the

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availability of less drastic alternatives.7

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The first two factors, the public’s interest in expeditiously resolving this litigation and the

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court’s interest in managing its docket, weigh in favor of dismissal. The defendants properly

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filed motions to dismiss, the court noticed and held a hearing on them, but the plaintiff failed to

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appear. I granted the motions to dismiss on their merits and made a record of my ruling but

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(considering this circuit’s liberal amendment policy) gave Bernabe ten days to file an amended

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complaint if she could plead plausible claims. She did not file an amended complaint, delaying

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the progress of this litigation.

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The third factor, risk of prejudice to defendants, also weighs in favor of dismissal because
a presumption of injury arises from the occurrence of unreasonable delay in filing a pleading

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Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986).

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See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with
local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to
comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439,
1440–41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se
plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130
(9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779
F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with
local rules).
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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423–24; Malone, 833 F.2d at 130;
Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
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ordered by the court or prosecuting an action.8 Bernabe was given ten days to file an amended

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complaint if she could cure the defects in her original complaint; she failed to do so. Instead, she

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continues to challenge this court’s jurisdiction to take any action in this case—which is a

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particularly ironic argument considering that it was Bernabe herself who filed this lawsuit in this

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court and paid the filing fee to have this court preside over this case.9

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A court’s warning to a party that her failure to obey the court’s order will result in

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dismissal satisfies the fifth factor’s “consideration of alternatives” requirement.10 The fourth

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factor—the public policy favoring disposition of cases on their merits—is greatly outweighed by

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the factors favoring dismissal. And, as I explained at the duly noticed hearing on the motions to

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dismiss, which Bernabe failed to attend, Bernabe’s claims as pled lack merit. So even this factor

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weighs in favor of dismissal.

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Accordingly, IT IS HEREBY ORDERED that this case is DISMISSED. The Clerk of
Court is directed to CLOSE THIS CASE.

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DATED: June 5, 2017

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_______________________________
___________________
_
_ _ __ _
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Jennifer A. Dorsey
nnifer A.
ife
y
United States District Judg
nited States District Judge
rict
i

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See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).

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See ECF No. 1.
Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132–33; Henderson, 779 F.2d at 1424.
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