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Zhiqiang Cao, et al v. U.S. Bancorp

August 26, 2011

ZHIQIANG CAO, ET AL.,
PLAINTIFFS,
v.
U.S. BANCORP, N.A., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Edward J. Davila United States District Judge

United States District Court For the Northern District of California

ORDER GRANTING MOTION TO DISMISS CASE FOR FAILURE TO COMPLY WITH A COURT ORDER AND FOR FAILURE TOPROSECUTE

(Re: Docket No. 25)

Pending before the court is Defendant U.S. Bancorp, U.S. Bank unopposed N.A.'s (" ") motion to dismiss with prejudice for failure to prosecute and failure to comply with a court order.

U.S. Bank appeared before the court on August 26, 2011 for oral argument; Plaintiffs failed to 19 appear. For the reasons discussed below, the motion is GRANTED.

I. BACKGROUND

Plaintiffs brought this putative class action against U.S. Bank and Defendant Richard K.Davis ("Davis"), alleging violations of the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1631, et 23 24 seq., the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. §§ 1961-1968, and various state law claims. Plaintiffs allege that Defendants have engaged in a systematic pattern 26 of defrauding homeowners through predatory lending practices. state a claim, which Plaintiffs opposed. Chief Judge Ware, who presided over the case, took themotion under submission without oral argument. On January 31, 2011, Chief Judge Ware granted 4 the motion to dismiss as to the federal causes of action and declined to reach the remaining state 5 law claims. All five Plaintiffs were granted leave to amend as to the RICO cause of action and 6 only two Plaintiffs were granted leave to amend the TILA cause of action.

To date, Plaintiffs have failed to file an amended complaint.

On September 24, 2010, U.S. Bank filed a motion to dismiss the complaint for failure to The court ordered that "[o]n or before February 28, 2011, Plaintiffs shall file an Amended Complaint consistent with the terms of this Order. The Amended Complaint shall also address the sufficiency of the Court's jurisdiction under CAFA. Failure to file a timely Amended Complaint may warrant sanctions pursuant to Federal Rule of Civil Procedure 41(b), including dismissal for failure to prosecute, which is dismissal on the merits."

Order Granting Def. U.S. Bank's Mot. To Dismiss With Leave To Amend 8:8-20, Jan. 31, On March 28, 2011, U.S. Bank filed this motion to dismiss the action pursuant to Rule 41(b). On April 25, 2011, the case was reassigned from Chief Judge Ware to the undersigned, and 16 17 the court ordered all parties to file a joint case management statement within ten days. On May 5, 2011, U.S. Bank filed a separate case management statement. To date, Plaintiffs have failed to file 19 a case management statement. 20 The court scheduled the oral argument on this motion to be heard on August 26, 2011.

Thus, Plaintiffs were required to file any opposition to this motion to dismiss no later than August 22 5, 2011. See Civ. L.R. 7-3(a) (Sept. 2010) ("Any opposition to a motion must be served and filed 23 not less than 21 days before the hearing date.") (amended June 2, 2011). To date, Plaintiffs have 24 25 failed to file any opposition to this motion. On August 23, 2011, the court ordered Plaintiffs to respond in writing no later than August 24, 2011 and to appear in court on August 26, 2011 to show cause why the unopposed motion should not be granted and the action dismissed for failure to comply with the January 31, 2011 Order to file an amended complaint. Plaintiffs failed to respond in writing. Additionally, Plaintiffs failed to appear at the August 26, 2011 hearing on U.S. Bank's motion to dismiss and the court's 4 order to show cause.

II. LEGAL STANDARDS

Rule 41(b) states that if the plaintiff fails to prosecute or to comply with a court order, adefendant may move to dismiss the action or any claim against it. Unless the dismissal order states 8 9 otherwise, a dismissal under this subdivision operates as an adjudication on the merits. Dismissal under Rule 41(b) is a sanction, to be imposed only in "extreme circumstances." Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996) (quoting Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986) (per curiam)).

amended complaint by February 28, 2011 or indicating their intention to not do so. Where the 16 17 court grants a motion to dismiss with leave to amend, "[t]he failure of the plaintiff eventually to respond to the court's ultimatum-either by amending the complaint or by indicating to the court 19 that it will not do so-is properly met with the sanction of a Rule 41(b) dismissal." Edwards v. 20 Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004); see also Yourish v. Cal. Amplifier, 191 F.3d 21 983, 986-87 (9th Cir. 1999) ("Under Ninth Circuit precedent, when a plaintiff fails to amend his 22 complaint after the district judge dismisses the complaint with leave to amend, the dismissal is 23 typically considered a dismissal for failing to ...


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