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Joseph Edward Marty & Russell v. New Line Mortgage

March 1, 2013

JOSEPH EDWARD MARTY & RUSSELL JAY GOULD, PLAINTIFFS,
v.
NEW LINE MORTGAGE, DEFENDANT.



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

ORDER AND FINDINGS AND RECOMMENDATIONS

Through these findings and recommendations, the undersigned recommends that plaintiffs' case be dismissed with prejudice and that this case be closed.*fn1 Plaintiffs Joseph Edward Marty and Russell Jay Gould twice failed to file an opposition to defendant New Line Mortgage's motion to dismiss plaintiffs' complaint pursuant to Rule 12(b)(6) and other grounds, despite plaintiffs having been clearly warned of the consequences for failing to do so.

I. BACKGROUND

Plaintiffs, proceeding without counsel, filed their complaint on December 3, 2012 and paid the filing fee. (Dkt. No. 1.) That same day, the court issued an order setting a status conference. (Dkt. No. 3.) That order advised the parties 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." (Id. at 3.) Additionally, it cautioned the parties that "pursuant to Local Rule 230(c), opposition to granting of a motion must be filed fourteen days preceding the noticed hearing date. The Rule further provides that 'no party will be entitled to be heard in opposition to a motion at oral arguments if written opposition to the motion has not been timely filed by that party.' Moreover, Local Rule 230(i) provides that failure to appear may be deemed withdrawal of opposition to the motion or may result in sanctions." (Id.) 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.)

On January 3, 2013, defendant filed a motion to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and other grounds. (Dkt. No. 9.) The motion to dismiss was noticed for hearing on February 7, 2013. (Id.)*fn2 As part of its motion, defendant correctly observed that plaintiffs' complaint was largely unintelligible gibberish, merely laying out garbled, code-like sentence fragments that make no cogent or coherent sense. (Id.)

As noted above, pursuant to this court's Local Rules, plaintiffs were obligated to file and serve a written opposition, or a statement of non-opposition, to the pending motion at least fourteen (14) days prior to the hearing date, or January 24, 2013. See E.D. Cal. L.R. 230(c).*fn3 However, plaintiffs failed to file an opposition or statement of non-opposition to the motion by that deadline.

As a result of plaintiffs' failure, but in light of their pro se status, the undersigned issued an order on January 29, 2013, continuing the hearing on the motion to dismiss until March 14, 2013, and providing plaintiffs with an additional opportunity to file an opposition or statement of non-opposition to the motion on or before February 28, 2013. (Dkt. No. 11.) In that order, the undersigned specifically warned plaintiffs that their "failure to file a written opposition will be deemed a statement of non-opposition to the pending motion and consent to the granting of the motion to dismiss, and shall constitute an additional ground for the imposition of appropriate sanctions, including a recommendation that plaintiffs' case be involuntarily dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b)." (Id. at 3) (emphasis in original). The order also advised plaintiffs as follows:

Eastern District Local Rule 110 provides that "[f]ailure 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." Moreover, 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, judgment by default, or any other sanction appropriate under these Rules.

See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants") (overruled on other grounds). Case law is in accord 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.*fn4 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 or default).

(Id. at 2-3.) Although the February 28, 2013 deadline has now passed, the court's docket reveals that plaintiffs again failed to file an opposition to the motion to dismiss.*fn5

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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