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


August 7, 2012


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

** E-filed August 7, 2012 **


United States District Court


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


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 F.3d 1128, 1138 (9th Cir.



Wells Fargo contends that dismissal is now appropriate because plaintiffs have failed to file

25 an amended complaint, which constitutes a failure to prosecute and a violation of this court's Order 26 of May 15, 2012. In essence, defendant's motion substitutes for an Order to Show Cause re: failure 27

to prosecute that this court could have issued to address plaintiff's failure to act. Wells Fargo argues 2 that four of the five relevant factors weigh in favor of dismissal of the action. 3

4 dismissal." Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002), cert. denied, 538 U.S. 909 5

(2003). The Ninth Circuit has found this factor to be especially compelling in favor of dismissal 6 when "[p]laintiffs' noncompliance has caused the action to come to a complete halt, thereby 7 allowing [p]laintiffs to control the pace of the docket rather than the Court." Yourish v. California 8

The first factor, the public's interest in expeditious resolution of litigation, "always favors

Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Here, since the court dismissed plaintiffs' complaint 9 in its entirety, plaintiffs' failure to file an amended pleading has caused the case to grind to a 10 complete halt. Accordingly, this factor weighs strongly in favor of dismissal.

Next, the court must consider its need to manage its docket. "This factor is usually reviewed

in conjunction with the public's interest in expeditious resolution." In re Phenylpropanolamine 13

(PPA) Prods. Liab. Litig., 460 F.3d at 1227. "Where a court order is violated, the first and second 14 factors will favor sanctions." Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 15 2004). Here, the court's Order of May 15 state that plaintiffs "may file and serve any amended 16 complaint within 14 days," so it is not as though plaintiffs have refused to comply with some 17 express directive given by the court. However, if plaintiffs wished to pursue this action, they would 18 have had to supply a complaint, which they have not done. Without a complaint, this case will 19 simply languish on the court's docket, unable to proceed. Accordingly, this factor also favors 20 dismissal. 21

Third, the court considers whether there is any prejudice to defendants. "In the absence of a

22 showing to the contrary, prejudice to defendants or respondents is presumed from unreasonable 23 delay." In re Eisen, 31 F.3d 1447, 1452-1453 (9th Cir. 1994). Moreover, the Ninth Circuit, "has 24 consistently held that the failure to prosecute diligently is sufficient by itself to justify a dismissal, 25 even in the absence of a showing of actual prejudice to the defendant from the failure." Anderson v. 26

Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976) (emphasis added). While the presumption is a 27 rebuttal one, plaintiffs in this case have made no effort to rebut that presumption. "Delay in serving 28 a complaint is a particularly serious failure to prosecute because it affects all the defendant's

preparations." Id. at 525 (citing Pearson v. Dennison, 353 F.2d 24 (9th Cir. 1965). Therefore, this 2 favor too favors dismissal. 3

In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d at 1228. "Despite the policy 5 favoring disposition on the merits, however, it remains a litigant's responsibility to comply with 6 orders issued by the court and 'to move towards that disposition at a reasonable pace, and to refrain 7 from dilatory and evasive tactics.'" Grubb v. Hernandez, 2009 U.S. Dist. LEXIS 131034, *7 (C.D. 8

The fourth factor, favoring dispositions on the merits, always weighs against dismissal. See


Cal. Mar. 23, 2009) (quoting In re Eisen, 31 F.3d at 1452). Here, plaintiffs have not fulfilled their 9 obligation. 10

consideration does not require that the court actually impose less drastic sanctions before dismissing

an action. In this case, the alternative sanctions available would not cure plaintiffs' failure to 13 prosecute with "reasonable diligence." See Anderson, 542 F.2d at 524 (stating that "the failure to 14 prosecute diligently is sufficient by itself to justify a dismissal"). As the court has no information 15 about whether the present inaction is caused by the delinquency of plaintiffs or of their attorney, it 16 seems inappropriate to impose monetary sanctions, costs, or fees on either, and certainly there are no 17 apparent grounds for suspending plaintiffs' counsel from practicing before the court. As no 18 scheduling order has yet been issued in the case, it would be difficult to place it "at the bottom of the 19 calendar." The court concludes that a warning would be of little use, since plaintiffs have simply 20 ignored these proceedings since April 2012. And as the court has already dismissed all of plaintiffs' 21 claims, there is nothing left for the court to preclude. "This action cannot proceed without a 22 complaint on file." Grubb, 2009 U.S. Dist. LEXIS 131034 at *6. Although less drastic sanctions 23 might be available, plaintiffs have failed to offer any evidence that might guide the court toward the 24 appropriate imposition of some lesser sanction. Accordingly, this factor also favors dismissal. 25

Finally, the court considers whether less drastic sanctions*fn2 are available. However, this Even though dismissal is a harsh remedy, it is appropriate in this case. Wells Fargo's motion 2 is GRANTED, and this case is DISMISSED without prejudice. The Clerk of the Court shall close 3 the file. 4


C12-01523 HRL Notice will be electronically mailed to: John Fennacy Anton Hasenkampf 3 Keith Yandell Marshall Wallace 4 2 Counsel are responsible for distributing copies of this document to co-counsel who have not 5 registered for e-filing under the court's CM/ECF program.

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