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Tariq M. Katina v. Mortgage Electronic Registration Systems

January 14, 2011

TARIQ M. KATINA, PLAINTIFF,
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. "MERS"; CITI MORTGAGE; NEIGHBOR'S FINANCIAL CORPORATION; CR TITLE SERVICES INC.; JOHN OR JANE DOES 1-1000, DEFENDANTS.



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

ORDER and FINDINGS AND RECOMMENDATIONS

Pending before the court are three motions filed by defendants*fn1 CitiMortgage, Inc., CR Title Services, Inc., and Mortgage Electronic Registration Systems, Inc. (collectively, the "Moving Defendants") that are pending before the court: (1) a motion to dismiss filed pursuant to Federal Rules of Civil Procedure 8(a) and 12(b)(6) (Dkt. No. 6); a motion to strike filed pursuant to Federal Rule of Civil Procedure 12(f) (Dkt. No. 5); and a motion to expunge plaintiff's notice of pendency of action (lis pendens) (Dkt. No. 10). Plaintiff failed to file written oppositions or statements of non-opposition to these motions. Accordingly, the court continued the hearing on these motions and provided plaintiff with another opportunity to file such written oppositions or statements of non-opposition. The court also warned plaintiff that his failure to file such documents with the court would constitute plaintiff's consent to the granting of the motions and also result in a recommendation that his case be dismissed. Plaintiff has again failed to file written oppositions or statements of non-opposition with respect to the three pending motions. Accordingly, the undersigned recommends that plaintiff's action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) and that the motion to expunge the lis pendens be granted.

I. BACKGROUND

On July 29, 2010, the Moving Defendants removed this action from the Superior Court to this court.*fn2 (Dkt. No. 1.) The Moving Defendants filed their motion to strike and motion to dismiss on August 2, 2010, and filed their motion to expunge the lis pendens on October 1, 2010. (Dkt. Nos. 5, 6, 10.) The Moving Defendants subsequently re-noticed their motions for hearings to take place on November 8, 2010 (see Dkt. Nos. 16-20), and the court continued the hearing to December 16, 2010 (Dkt. No. 21).*fn3 Pursuant to this court's Local Rules, plaintiff was obligated to file and serve written oppositions or statements of non-opposition to the Moving Defendants' motions at least fourteen days prior to the hearing date, or December 2, //// //// 2010. See E. Dist. Local Rule 230(c).*fn4 Plaintiff failed to do so.

As a result of plaintiff's failure to file written oppositions or statements of non-opposition to the Moving Defendants' motions, the undersigned continued the hearing on those motions to January 27, 2011, and ordered plaintiff to file written oppositions or statements of non-opposition to the pending motions on or before January 6, 2011. (Order, Dec. 7, 2010, at 5.) The undersigned's order conveyed the following warning to plaintiff:

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 . . . or any other sanction appropriate under these Rules.

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 his or 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."); 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."); 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).

(Id. at 4-5.) The undersigned further admonished plaintiff that: "Plaintiff's failure to file written oppositions may be deemed a statement of non-opposition to the pending motions, and shall constitute additional grounds 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 5 (emphasis in original).)

The court's docket reveals that plaintiff again failed to file written oppositions or statements of non-opposition to the Moving Defendants' motions. Plaintiff failed to do so despite being given ample opportunity to do so and explicit warnings that the failure to file written oppositions or statements of non-opposition would result in the dismissal of his lawsuit.

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.*fn5 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).*fn6

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, ...


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