IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 11, 2011
PHAL S. PACHECO, AN INDIVIDUAL, PLAINTIFF,
PAUL FINANCIAL, LLC, A DELAWARE LIMITED LIABILITY COMPANY; PREMIER CAPITAL MORTGAGE, A BUSINESS ENTITY, FORM UNKNOWN; GMAC MORTGAGE, LLC, A DELAWARE LIMITED LIABILITY COMPANY; FOUNDATION CONVEYANCING LLC, A DELAWARE LIMITED COMPANY, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., A DELAWARE CORPORATION; AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Presently before the court *fn1 is a motion to dismiss plaintiff's complaint filed by the following defendants: GMAC Mortgage, LLC, Executive Trustee Services, LLC, and Mortgage Electronic Systems, Inc. ("Moving Defendants"). The Moving Defendants filed their motion on December 29, 2010. 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 would lead to the involuntary dismissal of his lawsuit. For the reasons that follow, the undersigned recommends that plaintiff's action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b).
On December 22, 2010, the Moving Defendants removed plaintiff's case
to federal court.*fn2 (Notice of Removal, Dkt. No. 1.) On
December 29, 2010, the Moving Defendants filed a motion to dismiss
plaintiff's complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) and noticed that motion for a hearing before the undersigned
to take place on February 3, 2011. (Mot. to Dismiss, Dkt. No. 7.)
Pursuant to this court's Local Rules, plaintiff was obligated to file
and serve a written opposition or statement of non-opposition to the
Moving Defendants' motion at least fourteen days prior to the hearing
date, or January 20, 2011. See E. Dist. Local Rule 230(c).*fn3
Plaintiff failed to file any response to the motion to
On January 24, 2011, and in response to plaintiff's failure to file a response to the Moving Defendants' motion, the undersigned entered an order that: (1) continued the hearing on the Moving Defendants' motion to dismiss until March 3, 2011, and (2) required plaintiff to file opposition to the pending motion and consent to the granting of the motion to dismiss, 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 3-4 (emphasis in original).) Thus, the court gave plaintiff very clear warnings that his case would be dismissed for failure to prosecute his action or his failure to comply with the Federal Rules of Civil Procedure, the court's orders, or 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 the Moving Defendants' motion to dismiss. Plaintiff failed to do so despite being given an additional opportunity to do so and explicit warnings that the failure to file a written opposition or statement of non-opposition would result in the dismissal of his lawsuit.
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.*fn4
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. Plaintiff's failure to file an opposition or statement of non-opposition to the Moving Defendants' motion to dismiss in the first instance, and his failure to do so a second time, despite clear warnings of the consequences for such failures, strongly suggests that plaintiff has abandoned this action or is 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."). Moreover, although plaintiff had notice of the continued hearing date and his potentially final opportunity to file a response to the Moving Defendants' motion on or before February 3, 2011, plaintiff took no action. Any further time spent by the court on this case, which plaintiff has demonstrated a lack of any serious intention to pursue, will consume scarce judicial resources and take away from other active cases. See Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent power to manage their dockets without being subject to noncompliant litigants).
In addition, the third factor, which considers prejudice to a defendant as a result of plaintiff's failure to timely oppose its motion to dismiss, should be given some weight. See Ferdik, 963 F.2d at 1262. A motion to dismiss is an aid to simplifying the issues and dismissing improper claims or parties before discovery ensues. Plaintiff's failure to oppose the Moving Defendants' motion after being given two opportunities to do so, and his failure to communicate with the court or explain his non-participation in this litigation, raises the real possibility that all defendants in this action may be forced to unnecessarily engage in further litigation against claims that plaintiff does not appear to value enough to pursue in a serious manner. Indeed, the Moving Defendants have been diligently pursuing their motion to dismiss, and plaintiff stalled this matter and prevented the efficient resolution of his lawsuit. Moreover, unreasonable delay is presumed to be prejudicial. See, e.g., In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d at 1227.
The fifth factor, which considers the availability of less drastic measures, also supports dismissal of this action. As noted above, the court has actually pursued remedies that are less drastic than a recommendation of dismissal. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987) ("[E]xplicit discussion of alternatives is unnecessary if the district court actually tries alternatives before employing the ultimate sanction of dismissal."). The court excused plaintiff's initial failure to oppose the Moving Defendants' motion, granted plaintiff substantial additional time to file an opposition or statement of non-opposition, and continued the hearing on the motion to dismiss. Moreover, the court advised plaintiff of the requirement of opposing a motion to dismiss and informed him of the requirements of the Local Rules. Furthermore, the court advised plaintiff that he was required to comply with the court's Local Rules and the Federal Rules of Civil Procedure even though he is proceeding without counsel. It also warned plaintiff in clear terms that failure to comply with the court's orders would result in a recommendation of dismissal. Warning a plaintiff that failure to take steps towards resolution of his or her action on the merits will result in dismissal satisfies the requirement that the court consider the alternatives. See, e.g., Ferdik, 963 F.2d at 1262 ("[O]ur decisions also suggest that a district court's warning to a party that his failure to obey the court's order will result in dismissal can satisfy the 'consideration of alternatives' requirement.") (citing Malone, 833 F.2d at 132-33). At this juncture, the court finds no suitable alternative to a recommendation for dismissal of this action. This finding is supported by the fact that plaintiff's complaint, which alleges that plaintiff has encountered financial difficulties leading to the foreclosure of his home (see generally Compl.), suggests that plaintiff would very likely be unable to pay any monetary sanction imposed in lieu of dismissal.
The court also recognizes the importance of giving due weight to the fourth factor, which addresses the public policy favoring disposition of cases on the merits. However, for the reasons set forth above, factors one, two, three, and five strongly support a recommendation for dismissal of this action, and factor four does not materially counsel otherwise. Dismissal is proper "where at least four factors support dismissal or where at least three factors 'strongly' support dismissal." Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations and quotation marks omitted). Under the circumstances of this case, the other relevant factors outweigh the general public policy favoring disposition of actions on their merits. See Ferdik, 963 F.2d at 1263.
In light of the foregoing, IT IS HEREBY ORDERED that:
1. The hearing on the Moving Defendants' motion to dismiss (Dkt. No. 7), presently scheduled for March 3, 2011, is vacated.
It is FURTHER RECOMMENDED that:
1. Plaintiff's case be dismissed with prejudice as to all defendants pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
2. The Clerk of Court close this case and vacate all future dates in this case. 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 E. Dist. 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. E. Dist. 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).
IT IS SO ORDERED AND RECOMMENDED.