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Randall C. Bond; et al v. Cal-Western Reconveyance Corp.; et al

August 7, 2012

RANDALL C. BOND; ET AL., PLAINTIFFS,
v.
CAL-WESTERN RECONVEYANCE CORP.; ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed August 7, 2012 **

NOT FOR CITATION

United States District Court

ORDER GRANTING DEFENDANTS' MOTION FOR ENTRY OF JUDGMENT OF DISMISSAL [Re: Docket No. 20]

For the Northern District of California

Randall and Trini Bond sued Wells Fargo Bank, N.A. ("Wells Fargo"), their residential 18 refinance loan servicer, Cal-Western Reconveyance Corp. ("Cal-Western"), the trustee of the Deed 19 of Trust, and LSI Title Company ("LSI"), the agent for Wells Fargo, in state court, alleging 20 numerous claims arising out of what plaintiffs contend was an unlawful foreclosure proceeding. See 21 Dkt. No. 1, Exh. A ("Complaint"). Defendant Wells Fargo removed the action to this court. Dkt. 22 No. 1 ("Notice of Removal"). Plaintiffs moved for a preliminary injunction and Wells Fargo moved 23 to dismiss the complaint. Dkt. Nos. 12, 9. Plaintiffs did not oppose Wells Fargo's motion to dismiss, 24 nor did they file any reply to Wells Fargo's opposition to their motion for a preliminary injunction. 25

The court held a hearing on both motions on May 15, 2012. Dkt. No. 15. Plaintiffs did not appear at 26 hearing in support of their motion for a preliminary injunction or to oppose the motion to dismiss. 27

The court denied plaintiffs' motion and granted Wells Fargo's, giving plaintiffs 14 days to file an 28 amended complaint.*fn1 Plaintiffs, who are represented by counsel, have not filed an amended 2 complaint, nor have they submitted any filing to the court since April 17, 2012, the date they moved 3 for the preliminary injunction. 4 41(b). Dkt. No. 20. Plaintiffs have not opposed the motion. All parties have expressly consented to 6 magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). Based on the moving papers, 7 arguments presented at hearing, and all applicable authority, the court rules as follows. 8

LEGAL STANDARD

Federal Rule of Civil Procedure 41(b) permits a defendant to move for an order dismissing a 10 plaintiff s complaint due to the plaintiff s failure to prosecute that action, failure to comply with court orders, and/or failure to comply with the Federal Rules of Civil Procedure. Granting a Rule 41 (b) motion is within the sound discretion of the district court. Link v. 18 Wabash R.R. Co., 370 U.S. 13 Now, Wells Fargo moves for entry of judgment of dismissal pursuant to Fed. R. Civ. P.

626, 633 (1962). "Dismissal, however, is so harsh a penalty it should be imposed as a sanction only 14 in extreme circumstances." Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th 15

Cir. 1986). Before imposing the sanction of dismissal, courts should consider the following factors 16 when considering voluntary dismissal under Rule 41(b): "'(1) the public's interest in expeditious 17 resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the 18 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 19 availability of less drastic sanctions.'" In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 20

1987) (internal citations omitted)); Southwest Marine, Inc. v. Danzig, 217 ...


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