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Edward Somerville v. Wells Fargo Bank

November 19, 2012

EDWARD SOMERVILLE, PLAINTIFF,
v.
WELLS FARGO BANK, N.A., ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS

Through these findings and recommendations, the undersigned recommends that plaintiff's case be dismissed with prejudice and that this case be closed.*fn1 Plaintiff failed to complete service of process, failed to file a required status report prior to the scheduled status (pre-trial scheduling) conference, failed to appear at the status conference, and failed to respond to the court's order to show cause.

I. BACKGROUND

Plaintiff is proceeding without counsel. On April 30, 2012, plaintiff filed his

complaint and paid the filing fee. (Dkt. No. 1.) That same day, the court issued an order setting a status (pre-trial scheduling) conference for October 4, 2012, at 10:00 a.m., in Courtroom No. 25 before the undersigned. (Dkt. No. 3 at 2.) The order stated that "[a]ll parties shall appear by counsel or in person if acting without counsel" and required the parties to file status reports addressing specified issues not later than seven (7) days prior to the status conference. (Id.) On May 18, 2012, due to the court's own unavailability, the court continued the status conference to October 25, 2012, by minute order, which was served on plaintiff. (Dkt. No. 4.)

The court's April 30, 2012 order setting status conference also directed plaintiff to complete service of process on the named defendants within 120 days and cautioned plaintiff that the action may be dismissed if service of process is not accomplished within that period. (Dkt. No. 3 at 1); see Fed. R. Civ. P. 4(m). Furthermore, the order cautioned that "[f]ailing to obey federal or local rules, or [an] order of this court, may result in dismissal of this action. This court will construe pro se pleadings liberally, but pro se litigants must comply with the procedural rules." (Dkt. No. 3 at 3.) Finally, the order notified the parties that "Local Rule 110 provides that failure to comply with the Local Rules may be grounds for imposition of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." (Id.)

No party appeared at the October 25, 2012 status conference and no status reports were filed. Furthermore, there has been no docket activity by any party since the case was initially filed in April 2012. This strongly suggests that plaintiff has not effectuated service of process on the named defendants.

As a result of plaintiff's failures, the undersigned entered an order to show cause ("OSC") on October 26, 2012, which required plaintiff, within fourteen (14) days of the date of service of that order, to "show cause in writing why this case should not be dismissed with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for plaintiff's failure to prosecute the action and failure to follow the court's orders, the Local Rules, and the Federal Rules of Civil Procedure. (Dkt. No. 6 at 2-3.) In ordering plaintiff to show cause, the undersigned warned plaintiff: "Plaintiff's failure to respond to this order, or plaintiff's failure to show good cause for his non-compliance with the court's orders and procedural rules, shall constitute an additional ground for the imposition of appropriate sanctions, including a recommendation that plaintiff's case be involuntarily dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) and Local Rules 110 and 183(a)." (Id. at 3.) The OSC also advised plaintiff as follows:

"Pro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (overruled on other grounds). A district court may impose sanctions, including involuntary dismissal of a plaintiff's case with prejudice 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. 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); 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."); 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).

(Id. at 2.) The court's docket reveals that plaintiff failed to file a response to the OSC in accordance with the court's order.*fn2

II. DISCUSSION

Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to comply with the court's local rules, or failure to comply with the court's orders. See, e.g., 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) (recognizing 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); 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"); Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002) (affirming district court's dismissal of case for failure to prosecute when habeas petitioner failed to file a first amended petition). This court's Local Rules are in accord. See E.D. Cal. L.R. 110 ("Failure 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."); E.D. Cal.

L.R. 183(a) (providing that a pro se party's failure to comply with the Federal Rules of Civil Procedure, the court's Local Rules, and other applicable law may support, among other things, dismissal of that party's action).

A court must weigh five factors in determining whether to dismiss a case for failure to prosecute, failure to comply with a court order, or failure to comply with a district court's local rules. See, e.g., Ferdik, ...


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