Aparicio et al v. Wells Fargo Bank NA et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS as to 11 Motion to Dismiss for Failure to State a Claim filed by Wells Fargo Bank NA, 30 Report and Recommendations. Case Closed. Signed by Judge Ted Stewart on 11/09/2011. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

JESUS APARICIO and ELIZABETH
APARICIO,
Plaintiffs,

MEMORANDUM DECISION AND
ORDER ADOPTING MAGISTRATE
JUDGE’S REPORT AND
RECOMMENDATION AND
DISMISSING CASE

v.

WELLS FARGO BANK, NA and eTITLE,

Case No. 2:11-CV-646 TS

Defendants.

This matter is before the Court on the Report and Recommendation of Magistrate Judge
Samuel Alba.1 On July 15, 2011, the above-entitled matter was referred to Magistrate Judge
Alba pursuant to 28 U.S.C. § 636(b)(1)(B). Defendants eTitle and Wells Fargo Bank, NA,
subsequently filed motions to dismiss.2
Magistrate Judge Alba scheduled a hearing on Defendants’ pending motions at which
Plaintiffs failed to appear. The Magistrate Judge then issued an order to show cause, instructing

1

Docket No. 30.

2

Docket Nos. 7 & 11.
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Plaintiffs to appear at a show cause hearing on October 18, 2011. Plaintiffs once more failed to
appear. The show cause order informed the Plaintiffs that “failure to appear at the October 18th
show cause hearing will result in the court’s recommendation that this case be dismissed.”3 The
Magistrate Judge issued his Report and Recommendation on October 20, 2011, recommending
that this matter be dismissed pursuant to Fed. R. Civ. P. 41(b).4 Fed. R. Civ. P. 41(b) states: “If
the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it.”
The Tenth Circuit has identified certain factors to consider in determining whether a
dismissal under Rule 41(b) is warranted. These factors include: (1) the degree of actual
prejudice; (2) the amount of interference with the judicial process; (3) the culpability of the
litigant; (4) whether the court warned the party in advance that dismissal of the action would be a
likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.5
In this case, the Court finds that the degree of prejudice to Plaintiffs is not high given the
opportunities provided by the Magistrate Judge for Plaintiffs to pursue their case. Moreover, the
Court finds that Defendants would be prejudiced if forced to continue to appear at hearings and
defend a case that Plaintiffs decline to prosecute. The Court also finds that dismissal is
appropriate given the amount of interference Plaintiffs’ actions have caused in the judicial
process. Plaintiffs have failed to appear at multiple hearings and have failed to respond to direct

3

Docket No. 28, at 2.

4

Docket No. 30.

5

Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992).
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orders of the Court. Such actions constitute a waste of the Court’s time and resources. The
Court also finds that Plaintiffs are directly culpable for the sanction as it is their failure to appear
and prosecute their claims that brings about this dismissal. Furthermore, the Magistrate Judge
warned the Plaintiffs in advance that failure to appear at the show cause hearing could result in
dismissal of their case. Finally, the Court finds that a lesser sanction is not appropriate as such is
unlikely to motivate Plaintiffs to actively pursue their case.
The Court notes that pursuant to the Report and Recommendation, Plaintiffs were given
fourteen days to submit any objections to the Report and Recommendation. The fourteen days
have now passed and Plaintiffs have not submitted any objections. It is therefore
ORDERED that the Magistrate Judge’s Report and Recommendation is ADOPTED and,
for the reasons outline above, Plaintiffs’ case is DISMISSED pursuant to Fed. R. Civ. P. 41(b).
The Clerk of Court is directed to close this case forthwith.
DATED November 9, 2011.
BY THE COURT:

___________________________________
TED STEWART
United States District Judge

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