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Juan Cardenas v. Recontrust Co

December 20, 2012

JUAN CARDENAS, PLAINTIFF,
v.
RECONTRUST CO, 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 proposed findings and recommendations, the undersigned recommends that plaintiff's case be dismissed with prejudice and that this case be closed.*fn1

Although plaintiff was granted leave to amend his complaint, plaintiff twice failed to do so.

I. BACKGROUND

Plaintiff, who is proceeding without counsel and in forma pauperis, filed his complaint on December 30, 2011. (Compl., Dkt. No. 1.) On September 24, 2012, the undersigned entered an order dismissing this case pursuant to 28 U.S.C. § 1915(e)(2)(B) and Federal Rule of Civil Procedure 12(h) for lack of subject matter jurisdiction. (Order, Dkt. No. 3.) However, such dismissal was without prejudice. Given plaintiff's pro se status, the undersigned gave plaintiff the opportunity to amend his pleading in order to state a proper basis for this court's jurisdiction.

Plaintiff was granted 30 days from September 24, 2012, to file an amended complaint that was complete in itself and that addressed the deficiencies described in the undersigned's order. Plaintiff failed to file any amended pleading. After more than 30 days passed, the undersigned issued another order giving plaintiff yet another opportunity to file an amended pleading. (Order, Nov. 2, 2012, Dkt. No. 4.) The undersigned warned plaintiff that if he failed to file an amended pleading by November 24, 2012, the undersigned would recommend that this case be dismissed.*fn2 (Id.)

The undersigned's prior order specifically informed plaintiff 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. 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.");

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). (Order, Nov. 2, 2012, Dkt. No. 4 at 2-3.) The undersigned's prior order also informed plaintiff that 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.

(Id.)

To date, plaintiff has had ample time to file an amended pleading and has not done so, despite having been warned of the consequences. Moreover, given plaintiff's pro se status, the undersigned gave plaintiff additional opportunities to amend his pleading to correct the deficiencies described in the undersigned's order of September 24, 2012. (Id.) Notwithstanding those opportunities, plaintiff has not filed any amended pleading to date.

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.*fn3 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."), cert. denied, 506 U.S. 915 (1992); 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), cert. denied, 538 U.S. 909 (2003). This court's Local Rules are in accord. See E. Dist. Local Rule 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 ...

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