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Cohn v. Bank of America

November 3, 2010

ESTHER COHN, PLAINTIFF,
v.
BANK OF AMERICA, DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS

Presently before the court is defendant's motion to dismiss plaintiff's complaint. Plaintiff has filed no written opposition, statement of non-opposition, or other response to the pending motion despite being given multiple opportunities to do so and clear warnings from the court that failure to do so could lead to the involuntary dismissal of her lawsuit.*fn1 For the reasons that follow, the undersigned will recommend that plaintiff's action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b).

I. BACKGROUND

On April 13, 2010, plaintiff filed her complaint, which, generally stated, relates to the foreclosure of her home. (Dkt. No. 1.) On August, 31, 2010, defendant filed a motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and noticed its motion for a hearing to take place on October 14, 2010.*fn2 (Dkt. Nos. 15.) Pursuant to this court's Local Rules, plaintiff, who is proceeding without counsel, was required to file and serve a written opposition or statement of non-opposition to defendant's motion at least fourteen days prior to the hearing date, or September 30, 2010. See E. Dist. Local Rule 230(c).*fn3 Plaintiff failed to file a written opposition or statement of non-opposition to defendant's motion to dismiss.

On October 5, 2010, and in response to plaintiff's failure to file a response to defendant's motion, the undersigned entered an order that: (1) continued the hearing on defendant's motion to dismiss until November 4, 2010; and (2) required plaintiff to file a written opposition or statement of non-opposition to defendant's motion to dismiss on or before October 21, 2010. (Dkt. No. 19.) That order states, in part:

Eastern District Local Rule 110 provides that "[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." Moreover, Eastern District Local Rule 183(a) provides, in part:

Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on "counsel" by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal.

See also 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."). Case law is in accord that a district court may impose sanctions, including involuntary dismissal of a plaintiff's case pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute her case, fails to comply with the court's orders, or fails to comply with the court's local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court "may act sua sponte to dismiss a suit for failure to prosecute"); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating 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."); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets and may impose sanctions including dismissal). (Dkt. No. 19 at 2-3 (emphasis in original).) The order further admonished plaintiff as follows:

Plaintiff's failure to file a written opposition shall be deemed a statement of non-opposition to the pending motion, and shall constitute an additional ground for the imposition of appropriate sanctions, including a recommendation that plaintiff's case be involuntarily dismissed pursuant to Federal Rule of Civil Procedure 41(b). (Id. at 3 (emphasis in original).) Thus, the court gave plaintiff a very clear warning that her case could be dismissed for failure to prosecute her action, to comply with the court's orders, and to comply with the court's Local Rules.

The court's docket reveals that plaintiff has again failed to file a written opposition or statement of non-opposition to defendant's motion to dismiss. Plaintiff failed to do so despite being given ample opportunity to do so and explicit warnings that the failure to file a written opposition or statement of non-opposition could result in the dismissal of her lawsuit.

Although plaintiff failed to file anything with the court in response to defendant's motion to dismiss and the court's October 5, 2010 order, she appears to have transmitted two documents and a proof of service to defendant's counsel. On October 26, 2010, defendant filed a reply brief and an accompanying declaration of counsel that alerted the court to the transmission of the two documents by plaintiff to defendant's counsel. (See Pingel Decl. ¶ 3 & Ex. A, Dkt. No. 20, Doc. Nos. 20-1, 20-2.) Again, plaintiff filed nothing with the court, and the court is only aware of these documents because defendant brought them to the court's attention.

First, it appears that plaintiff served defendant's counsel by U.S. mail with a document entitled "Answer to Proposed Order Granting Defendant's Motion to Dismiss Plaintiff's Complaint" ("Answer"). (Pingel Decl., Ex. A at 1.) The Answer is dated October 8, 2010, and defendant's counsel received it on October 13, 2010. (Pingel Decl. ¶ 3.) This document is one page long and in large part simply restates that plaintiff is seeking $700,000, which is the alleged value of her foreclosed upon home. The Answer also "asks the court to continue the case without any dismissal" because "the plaintiff is the only party that has the right to ask for a dismissal." Again, plaintiff did not file this document with the court.

Second, it appears that plaintiff served defendant's counsel by U.S. mail with a document entitled "Plaintiff's Request to Change Court Dates" ("Request"). (Pingel Decl., Ex. A at 2.) This one-page request is dated October 8, 2010, and defendant's counsel received it on October 13, 2010. (Pingel Decl. ΒΆ 3.) In the Request, plaintiff asks the court to "change the date or cancel the dismissal hearing on October 14, 2010 is [sic] because the plaintiff will not be in the United States" from October 10, 2010 through November 4, 2010. The Request asks that the court either continue the hearing on defendant's already-continued motion to dismiss until the "end of November or cancel the whole court dismissal taken place on October 14, 2010." Again, plaintiff never filed this document with the court and never notified the court of her scheduled international travel. This is so ...


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