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Sandra Williams; Marion Williams v. Indymac Bank

December 30, 2010

SANDRA WILLIAMS; MARION WILLIAMS, PLAINTIFFS,
v.
INDYMAC BANK, FEDERAL SAVINGS BANK (F.S.B.), ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS /

I. BACKGROUND

In an order dated July 9, 2010, the undersigned granted plaintiffs' application to proceed in forma pauperis and ordered the service of plaintiffs' amended complaint on several defendants. (Dkt. No. 12.) That order directed the Clerk of Court to send certain materials to plaintiffs in relation to service of their amended complaint, and the Clerk of Court did so on July 13, 2010. (Dkt. Nos. 13, 14.) The court's order also provided that: "Plaintiffs shall supply the United States Marshal, within 30 days from the date this order is filed, all information needed by the Marshal to effectuate service of process, and shall, within 10 days thereafter, file a statement with the court that such documents have been submitted to the United States Marshal." (Dkt. No. 12 at 4.) It further provided that "[p]laintiffs' failure to comply with this order may result in a recommendation that this action be dismissed." (Id.)

Plaintiffs did not comply with the court's order regarding service and apparently have taken no steps to effectuate service of their amended complaint on defendants. Indeed, the docket reveals no activity in this case by plaintiffs since December 1, 2009, when plaintiffs filed their amended complaint.

Because of plaintiffs' failure to act in this matter, the undersigned entered, on September 2, 2010, an Order to Show Cause ("OSC"). (Dkt. No. 15.) The OSC required plaintiffs to file, no later than September 16, 2010, "a written statement with the court showing good cause why their lawsuit should not be dismissed for failure to prosecute and failure to comply with the court's order." (OSC at 2.) The OSC clearly warned plaintiffs that their "failures to comply with the court's order and prosecute their lawsuit are grounds for dismissal," and that plaintiff's failure to respond to the OSC "shall constitute additional grounds for dismissal of this action." (Id.)

The court's docket reveals that, to date, plaintiffs: (1) still have not filed the required statement notifying the court that they timely submitted the required service documents to the United States Marshal, and (2) failed to respond to the OSC. It readily appears to the undersigned that plaintiffs have abandoned their case. Accordingly, the undersigned recommends that this action be dismissed with prejudice.

II. DISCUSSION

Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an

action for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to comply with the court's local rules, or failure to comply with the court's orders.*fn1 See, e.g., 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) (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); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court."); Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002) (affirming district court's dismissal of case for failure to prosecute when habeas petitioner failed to file a first amended petition). This court's Local Rules are in accord. See E. Dist. Local Rule 110 ("Failure 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.");E. Dist. Local Rule 183(a) (providing that a pro se party's failure to comply with the Federal Rules of Civil Procedure, the court's Local Rules, and other applicable law may support, among other things, dismissal of that party's action).

A court must weigh five factors in determining whether to dismiss a case for failure to prosecute, failure to comply with a court order, or failure to comply with a district court's local rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider:

(1) the public's interest in expeditious resolution of litigation;

(2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.

Id. at 1260-61; accord Pagtalunan, 291 F.3d at 642-43; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The Ninth Circuit Court of Appeals has stated that "[t]hese factors are not a series of conditions precedent before the judge can do anything, but a way for a district judge to think about what to do." In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).

Although involuntary dismissal can be a harsh remedy, the five relevant factors weigh in favor of dismissal of this action. The first two factors strongly support dismissal of this action. Plaintiffs' failure to assist the United States Marshal's office in serving the amended complaint and failure to communicate with the court in over one year strongly suggests that plaintiffs have abandoned this action or are not interested in seriously prosecuting it. See, e.g., Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) ("The public's interest in expeditious resolution of litigation always favors dismissal."). Plaintiffs' failure to respond to the OSC after four months, despite clear warnings that their case would be dismissed for failure to respond, further supports the conclusion that plaintiffs have abandoned this action. Any further time spent by the court on this case, which plaintiffs have demonstrated a lack of any serious intention to ...


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