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Phal S. Pacheco, An Individual v. Paul Financial

February 11, 2011

PHAL S. PACHECO, AN INDIVIDUAL, PLAINTIFF,
v.
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).

I. BACKGROUND

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 dismiss.

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.

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.*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 ...


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