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John Magaoay, Lisa Magaoay v. Bank of America

January 30, 2012

JOHN MAGAOAY, LISA MAGAOAY , PLAINTIFFS,
v.
BANK OF AMERICA, N.A., ET AL. DEFENDANTS.



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

ORDER and FINDINGS AND RECOMMENDATIONS

Plaintiffs John and Lisa Magaoay (the "plaintiffs") are proceeding without counsel.*fn1 On November 16, 2011, defendants Bank of America, N.A., Mortgage Electronic Registration System, and Recontrust Company, N.A. (collectively, the "defendants") filed a Motion to Dismiss plaintiffs' complaint (Complaint ("Compl."), Exh. A to Dkt. No. 1) pursuant to Federal Rule of Civil Procedure 12(b) (Dkt. No. 15), as well as a supporting Request for Judicial Notice (Dkt. No. 16).

Defendants noticed their motion to dismiss for a hearing to take place before the undersigned on January 12, 2012. (Dkt. No. 15 at 1-2.) Pursuant to this court's Local Rules, plaintiffs were obligated to file and serve a written opposition or statement of non-opposition to the pending motion at least fourteen days prior to the hearing date, or December 29, 2011. See E. Dist. Local Rule 230(c).*fn2 Plaintiffs failed to file a written opposition or statement of non-opposition with respect to the motion to dismiss.

On January 4, 2012, the undersigned entered an order continuing the hearing date for defendants' motion, warning plaintiffs of the need to file a written opposition or statement of non-opposition by January 26, 2012, and explaining that a "failure to file a written opposition will be deemed a statement of non-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 plaintiffs' case be involuntarily dismissed pursuant to Federal Rule of Civil Procedure 41(b)." (Order, Jan. 4, 2012, Dkt. No. 18 at 3 (emphasis in original).)

The January 26, 2012 deadline has passed. Plaintiffs have filed no written opposition, statement of non-opposition, or other response to defendants' motion, despite being given multiple opportunities to do so and clear warnings from the court that failure to oppose the motion would lead to the involuntary dismissal of his entire lawsuit with prejudice. For the reasons that follow, the undersigned recommends that all of plaintiffs' claims be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) and Local Rules 110 and 183(a), and that this case be closed.

I. BACKGROUND

On November 16, 2011, defendants filed a Motion to Dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b) (Dkt. No. 15), as well as a supporting Request for Judicial Notice (Dkt. No. 16). As described above, defendants noticed that motion to dismiss for a hearing to take place before the undersigned on January 12, 2012 (Dkt. No. 15). Pursuant to this court's Local Rules, plaintiffs were obligated to file and serve a written opposition or statement of non-opposition to the pending motion at least fourteen days prior to the re-noticed hearing date, or December 29, 2011. See E. Dist. Local Rule 230(c).*fn3

Plaintiffs, who are proceeding without counsel, failed to file a written opposition or statement of non-opposition with respect to the motion to dismiss.

On January 4, 2012, and in response to plaintiffs' failure to file a response to defendants' motion to dismiss, the undersigned entered an order that: (1) continued the hearing on the motion to dismiss until February 9, 2012; and (2) required plaintiffs to file a written opposition or statement of non-opposition to the pending motion on or before January 26, 2012. (Order, Jan. 4, 2012, Dkt. No. 18.) That order states, in part:

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 or fails to comply with the court's orders, the Federal Rules of Civil Procedure, or the court's local rules.*fn4 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."), cert. denied, 516 U.S. 838 (1995); 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."), cert. denied, 506 U.S. 915 (1992); 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), cert. denied, 479 U.S. 829 (1986).

(Id. at 2-3 (footnote in original).) Later in that order, the court warned plaintiffs that: "Plaintiffs' failure to file a written opposition will be deemed a statement of non-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 plaintiffs' case be involuntarily dismissed pursuant to Federal Rule of Civil Procedure 41(b)." (Id. at 3 (emphasis in original).) Thus, the court gave plaintiffs very clear warnings that their case would be dismissed for their failure to prosecute this action or their 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 plaintiffs have again failed to file a written opposition or statement of non-opposition to the motion to dismiss. Plaintiffs failed to do so despite being given an additional opportunity oppose the motion to dismiss and explicit warnings that the failure to file a written opposition or statement of ...


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