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Esther Cohn v. Bank of America

February 23, 2011

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

In an order entered January 12, 2011, the undersigned granted defendant's motion to dismiss plaintiff's complaint, but provided plaintiff with 30 days to file a first amended complaint. (Order, Jan. 12, 2011, Dkt. No. 32.) The court's docket reveals that plaintiff failed to file a first amended complaint within the time provided. Accordingly, the undersigned recommends that plaintiff's case be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and failure to comply with the court's orders in this case despite repeated warnings regarding the consequences for such failures. Notably, this is the second time that the undersigned has entered findings and recommendations recommending the involuntary dismissal of plaintiff's case. Throughout this case, the undersigned has, out of an abundance of caution, granted plaintiff more leeway than the record suggests she deserved. At this point in the proceedings, it makes no sense to force defendant to defend against a meritless lawsuit that plaintiff has no interest in pursuing.

I. BACKGROUND

On April 13, 2010, plaintiff filed her complaint, which relates to the foreclosure of her home. (Compl., 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.*fn1 (Mot. to Dismiss, Dkt. Nos. 15.) In the ensuing months, plaintiff demonstrated an inability to respond to the pending motion to dismiss despite very clear warnings about the consequences of such a failure, including possible dismissal of her case. In short, plaintiff demonstrated to the court that she had chosen not to actively prosecute her lawsuit or comply with the court's orders, the Federal Rules of Civil Procedure, and the court's Local Rules.

As a result, on November 4, 2010, the undersigned entered findings and recommendations that recommended the dismissal of plaintiff's case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute her case and for failure to comply with the court's orders, the Federal Rules of Civil Procedure, and the court's Local Rules. (Findings & Recommendations, Nov. 4, 2010, Dkt. No. 23.) A detailed procedural history is included in those findings and recommendations.

On November 15, 2010, plaintiff filed timely objections to the findings and recommendations. (Pl.'s Objections, Dkt. No. 24.) Although the undersigned was skeptical of the representations made in plaintiff's objections as they pertained to plaintiff's intent to prosecute this action, the undersigned vacated the previously entered findings and recommendations, ordered plaintiff to file an opposition to the motion to dismiss, and set a hearing date of January 6, 2011. (Order, Dec. 1, 2010, Dkt. No. 27.)

Plaintiff filed a timely written opposition to defendant's motion to dismiss. The undersigned heard defendant's motion to dismiss on January 6, 2011. (Minutes, Jan. 6, 2011, Dkt. No. 31.) Plaintiff failed to appear at the hearing and provided no excuse for her failure either prior to or after the hearing.

On January 12, 2011, the undersigned entered an order dismissing plaintiff's complaint without prejudice and providing plaintiff with 30 days to file a first amended complaint. (Order, Jan. 1, 2006, at 19.) That order also stated that "[p]laintiff should also address in a separate writing the reasons why she failed to appear at the January 6, 2011 hearing, and why she should not be sanctioned for that failure to appear." (Id. at 20 n.11.) Furthermore, the order stated: "[I]f plaintiff fails to file a timely amended complaint or otherwise fails to prosecute her case or comply with the Federal Rules of Civil Procedure or the court's orders or Local Rules, the undersigned will recommend that plaintiff's case be dismissed with prejudice pursuant to Rule 41(b)." (Id. at 7.) Plaintiff failed to file an amended complaint or the separate writing addressing her failure to appear at the hearing on defendant's motion to dismiss.

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 court's local rules, and failure to comply with the court's orders. See, e.g., 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); see also 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.").

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 ...


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