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Muyiwa Ololade v. World Savings Bank

February 17, 2012

MUYIWA OLOLADE
v.
WORLD SAVINGS BANK, ET AL.



The opinion of the court was delivered by: The Honorable Margaret M. Morrow

CIVIL MINUTES - GENERAL

Present: The Honorable MARGARET M. MORROW

ANEL HUERTA N/A

Deputy Clerk Court Reporter

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

None None

Proceedings: Order Dismissing Complaint with Prejudice; Granting Motion to

Expunge Lis Pendens

On August 10, 2011, pro se plaintiff Muyiwa Ololade commenced this action in Los Angeles Superior Court against World Savings Bank, Wells Fargo Bank N.A., and certain fictitious defendants.*fn1 Defendant Wells Fargo Bank, N.A. removed the action to federal court, invoking the court's federal question jurisdiction under 28 U.S.C. § 1441, and its diversity jurisdiction under 28 U.S.C. § 1332.*fn2 On November 10, 2011, Wells Fargo filed a motion to dismiss plaintiffs' complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure and a motion to strike under Rule 12(f).*fn3 Despite being notified by the court of the standards governing both motions to dismiss and motions to strike, and the requirements for opposing them, Ololade did not oppose the motions.*fn4 On January 26, 2012, the court granted the motion to dismiss, but gave Ololade twenty days to amend all causes of action save one.*fn5 To date, plaintiff has not filed an amended complaint or otherwise responded to the court's order.

On December 2, 2011, Wells Fargo moved to expunge the notice of pending action that plaintiff had recorded.*fn6 Ololade has not opposed the motion. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the court finds the matter appropriate for decision without oral argument and vacates the hearing scheduled for February 27, 2012.

I. DISCUSSION

A. Plaintiff's Failure to File an Amended Complaint

Rule 41(b) permits courts to dismiss an action sua sponte for failure to comply with a court order. See, e.g., Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962) ("The authority of a court to dismiss sua sponte . . . has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs. . . . It would require a much clearer expression of purpose than Rule 41(b) provides for us to assume that it was intended to abrogate so well-acknowledged a proposition"); Yourish v. California Amplifier, 191 F.3d 983, 986 (9th Cir. 1999) (holding that district court did not abuse its discretion in sua sponte dismissing a complaint for failure to comply with a court order); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming a lower court's dismissal for failure to follow court orders).

Where, as here, a plaintiff whose complaint has been dismissed with leave to amend takes no action, the Ninth Circuit has held that the appropriate response is the sanction of a Rule 41(b) dismissal. See, e.g., Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) ("Yourish Ferdik both arose when plaintiffs, given the opportunity to amend or be dismissed, did nothing. In that situation, resources continue to be consumed by a case sitting idly on the court's docket. The failure of the plaintiff eventually to respond to the court's ultimatum -- either by amending the complaint or by indicating to the court that it will not do so -- is properly met with the sanction of a Rule 41(b) dismissal. . . . Hence we understand the Ferdik-Yourish rule to require a threatened Rule 12(b)(6) dismissal to ferment into a Rule 41(b) dismissal only upon a plaintiff's inaction. When the plaintiff timely responds with a formal notice of his intent not to amend, the threatened dismissal merely ripens into a final, appealable judgment" (citations omitted)); see also, e.g., Grubb v. Hernandez, No. ED CV 06-00807 SJO (AJW), 2009 ...


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