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Alfaro v. Bank of America


June 16, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff is proceeding without counsel. In an order issued on April 20, 2010, this court denied plaintiff's application for in forma pauperis status because plaintiff did not meet the indigency requirements of 28 U.S.C. § 1915(a). (Dkt. No. 3.) Hence, plaintiff was obligated to pay the $350 filing fee to commence a civil action in federal district court. 28 U.S.C. § 1914(a). The court provided plaintiff with twenty days from the date of that order to pay the filing fee. (Dkt. No. 3.) If plaintiff did not pay the filing fee, she was advised that the undersigned would recommend dismissal of her action. (Id.)

Plaintiff paid her $350 filing fee on May 5, 2010 via a check. (Court Receipt No. CAE200025974.) However, the undersigned learned on June 3, 2010 that plaintiff's check was returned to the court unpaid by plaintiff's financial institution.

As the Clerk of Court advised plaintiff via a letter dated June 3, 2010, plaintiff was now also responsible for an additional fee of $45 for a check paid into the court which was returned for lack of funds. (Dkt. No. 8 (citing 28 U.S.C. § 1914).) This court subsequently issued an order advising plaintiff that she was to remit the $395.00 filing and returned check fee to the Clerk of Court, by June 14, 2010, in accordance with the terms of the Clerk's June 3 letter or her action may be dismissed. (Dkt. No. 8.) Plaintiff did not make any payment to the court on or before June 14, 2010.

Accordingly, the undersigned recommends that this case be dismissed for failure to pay the requisite filing fee and failure to comply with the court's orders. SeeFed. R. Civ. P. 41(b); 28 U.S.C. § 1914 et seq.; Local Rule 121; Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) ("Failure to follow a district court's local rules is a proper ground for dismissal."); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants.").

For the foregoing reasons, the undersigned HEREBY RECOMMENDS that:

1. This case be dismissed without prejudice; and

2. The Clerk of Court be directed to close this case and vacate any pending dates.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).


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