Gierloff v. OCWEN Financial Corporation et al
ORDER: Defendants' Motion to Dismiss 31 and Defendants' Motion for Summary Judgment 38 are both granted and this action is dismissed with prejudice, pursuant to Rule 41(b), 12(b), and 56(a) of the Federal Rule of Civil Procedure and Defendants are awarded $2,730.00 in sanctions, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A). Signed on 3/1/2017 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Civ. No. 6:15-cv-01311-MC
OCWEN, et al,
For the following reasons, Defendants' Motion to Dismiss [#31] and Defendants' Motion
for Summary Judgment [#38] are both GRANTED. This action is DISMISSED with
prejudice, pursuant to Rules 41(b), 12(b), and 56(a) of the Federal Rules of Civil Procedure, and
Defendants are awarded $2,730.00 in sanctions, pursuant to Federal Rule of Civil Procedure
This action was filed by plaintiff Kenneth Gierloff on 7/14/2015 [#1]. The Complaint
was prepared by Plaintiffs attorney, Dennis Koho. On 8/29/2016, the Defendants filed a Motion
to Dismiss [#31]. The Plaintiff never responded. On 11/3/2016, the Defendants filed a Motion
for Summary Judgment [#38]. The Plaintiff never responded. On 6/2/2016, Mr. Koho filed a
Motion to Withdraw as Attorney [#26], which was granted on 6/6/2016 [#27]. On 12/23/2016,
Mr. Koho filed an unopposed motion to re-associate as counsel for the Plaintiff [#40]. The
motion was granted [#41], and although plaintiffs counsel mentions recognizing that discovery
expired on 8/29/2016, he did not address the pending Motion to Dismiss [#31] or Motion for
Summary Judgment [#38]. During the interim period (June-December 2016) when he did not
have counsel, the Plaintiff was mailed notices of deadlines. [#28; #30; #37].
On 2/13/2017, this Court issued an Order to Show Cause [#41], requiring the plaintiff to
respond in writing by 2/21/2017 as to why this action should not be dismissed for lack of
prosecution because he had failed to file a response to the Defendants' Motion to Dismiss or the
Defendants' Motion for Summary Judgment. [#41]. Plaintiff has never responded to the Order
to Show Cause or either of the dispositive motions.
STANDARD OF REVIEW
Federal courts possess the undisputed authority to control their dockets and to dismiss
cases that plaintiffs fail to prosecute. See Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962);
See also Ames v. Standard Oil Co., 108 F.R.D. 299, 301 (D.D.C. 1985). This power is reflected
in Rule 41 (b) of the Federal Rules of Civil Procedure, which allows for the dismissal of actions
when the plaintiff fails to prosecute it. A dismissal for failure to prosecute may be ordered by
the Court upon motion by an adverse party, or upon the Court's own motion. See Ash v. Cvetkov,
739 F.2d 493, 495 (9th Cir. 1984). See also Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d
498, 499 (9th Cir. 1987). Courts have found that dismissal for failure to prosecute is
"particularly appropriate when such a failure is coupled with disobedience to court orders or a
disregard of established rules." Ames v. Standard Oil Co., 108 F.R.D. 299 at 302 (D.D.C. 1985).
Under 28 U.S.C. § 1915(e)(2)(B)(ii), this court has the authority to dismiss an action at
any time, if it determines the action fails to state a claim on which relief may be granted.
In federal court, dismissal for failure to state a claim is proper only if it is clear that no relief
could be granted under any set of facts that could be proved consistent with the allegations.
Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993) (quoting Herhon v. King &
Spalding, 467 U.S. 69, 73 (1984)); Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989). The
court may not supply essential elements that are not pleaded. Ivey v. Board of Regents, 673 F .2d
266 (9th Cir. 1982). A pro se litigant will be given leave to amend her or her complaint unless it
is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. KarimPanahi, 839 F.2d at 623; Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987).
In order to state a claim against a named defendant, a plaintiff must allege specific facts
about that defendant and identify how that defendant's conduct violated her rights. General
allegations are insufficient. The absence of any factual allegations against a named defendant
will entitle that defendant to have the complaint dismissed as to him, pursuant to Fed. R. Civ. P.
12(b). Polk v. Montgomery County, 548 F. Supp. 613, 614 (D.Md. 1982). See also, Morabito v.
Blum, 528 F.Supp. 252, 262 (S.D. N.Y. 1981).
The court must grant summary judgment if there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(a). An issue
of fact is genuine "if the evidence is such that a reasonably jury could return a verdict for the
nonmoving party." Villiarimo v. Aloha Island Air., Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court views the
evidence in the light most favorable to the non-moving party. Allen v. City of Los Angeles, 66
F .3d 1052, 1056 (9th Cir. 1995) (citing Jesinger v. Nevada Federal Credit Union, 24 F .3d 1127,
1130 (9th Cir. 1994)). On a motion for summary judgment, "the moving party bears the initial
burden to show the absence of a material and triable issue of fact; the burden then moves to the
opposing party, who must present significant probative evidence tending to support its claim or
defense." Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). If the moving
party shows that there are no genuine issues of material fact, the nonmoving party must go
beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986); see Fed. R. Civ. P (56)(c). Where the non-moving party bears the
burden of an issue at trial and the motion challenges that issue, the non-moving party must set
forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2); Crane
v. Allen, No. 3:09-cv-1303-HZ, 2012 WL 602432, at *2 (D. Or. Feb. 22, 2012).
Though all inferences should be drawn in favor of the non-moving party, the mere
existence of some alleged factual dispute will not defeat an otherwise properly supported motion
for summary judgment. Anderson, 477 U.S. at 247-48. Rather, the non-moving party must
proffer evidence that could reasonably affect the outcome of the suit. Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006). The substantive law determines whether a
disputed fact is material. Richards, 810 F.2d at 902.
Here, Plaintiff has failed to respond to this Court's Order [#41] issued on 2/13/2017,
which ordered the Plaintiff to show cause in writing by 2/21/2017, as to why this action should
not be dismissed for failure to prosecute. On this basis alone, dismissal with prejudice is
appropriate under Rule 41(b) of the Federal Rules of Civil Procedure.
Dismissal is also appropriate under Rule 12(b) of the Federal Rules of Civil Procedure.
According to Defendants' counsel, Plaintiff has failed to respond to their discovery requests,
which served on 1119/2015 and were initially due by 7/27/2016. [#31 at pp.1-2]. Plaintiff also
failed to attend his 8/26/2016 deposition. [Id]. On 8/29/2016, the Defendants filed a Motion to
Dismiss [#31], asking the Court to issue an Order dismissing Plaintiffs complaint as a discovery
sanction for failing to respond to the discovery requests and missing the deposition. The
Defendants further moved the court to award Defendants' $3,230.00 in monetary sanctions for
their fees and costs incurred in attending Plaintiff's deposition and in bringing the motion to
dismiss, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), and Local Rule 37, 26-3, and
7(1) of the District of Oregon. [Id at p.2,10, and #32 at pp.4-5].
The Court agrees that sanctions are warranted in this case because the Plaintiff was aware
of the deadlines and the deposition [#32 at p.3], yet failed to respond in any form. The Court
finds that the Defendants' fees are reasonable and calculated accurately, with one exception:
Because a Reply brief was never filed, Defendants' attorney fees for 2 hours under line "d" for
"Anticipated time spent on Reply Brief' cannot be awarded. After subtracting $500.00 for this
line item, Defendants are awarded $2,730.00 in sanctions, pursuant to Federal Rule of Civil
Procedure 37(a)(5)(A), and Defendants' Motion to Dismiss [#31] is GRANTED.
Dismissal is also appropriate under Rule 56(a) of the Federal Rules of Civil Procedure,
because by the Plaintiff failing to respond to any of the Defendants' Requests for Admission (see
discussion above), he has admitted that he has no evidence to support his claims and therefore
cannot create a triable issue of material fact on any claim. Since there is no genuine issue as to
any material fact, Defendants' Motion for Summary Judgment [#38] is also GRANTED.
For these reasons, Defendants' Motion to Dismiss [#31] and Defendants' Motion for
Summary Judgment [#38] are both GRANTED and this action is DISMISSED with prejudice,
pursuant to Rules 41(b), 12(b), and 56(a) of the Federal Rules of Civil Procedure, and
Defendants are awarded $2,730.00 in sanctions, pursuant to Federal Rule of Civil Procedure
IT IS SO ORDERED.
DATED this 1st day of March, 2017.
Michael J. McShane
United States District Judge
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