Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Robert Ervin, et al v. Bank of America

May 2, 2013

ROBERT ERVIN, ET AL., PLAINTIFFS,
v.
BANK OF AMERICA, 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 this action be dismissed and that this case be closed.*fn1 Although plaintiff was previously granted leave to amend the complaint, plaintiff twice failed to do so.*fn2

I. BACKGROUND

Plaintiff Robert Ervin ("plaintiff"), who is proceeding without counsel and in forma pauperis, filed the complaint on June 14, 2012. (Compl., Dkt. No. 1.) The undersigned previously dismissed that pleading without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B), but gave plaintiff leave to file an amended complaint within 45 days. (Dkt. No. 3 at 7.) The relevant order was issued on December 13, 2012, and it warned plaintiff that a "[f]ailure to timely file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b) and Local Rules 110 and 183(a)." (Id.)

Plaintiff failed to file an amended pleading by the deadline stated in the undersigned's order. In light of plaintiff's status as a pro se litigant, however, the undersigned gave plaintiff a second opportunity to comply with that order and to file an amended pleading. On March 7, 2013, the undersigned issued an Order to Show Cause ("OSC") directing plaintiff to explain why the case should not be dismissed for plaintiff's failure to comply with the court order requiring him to file an amended pleading, and for his failure to timely prosecute the case. (OSC, Dkt. No. 4.) The OSC specifically warned plaintiff that a "failure to file the required writing and/or a First Amended Complaint shall constitute an additional ground for, and plaintiff's consent to, 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)." (OSC at 3 (emphasis in original).) However, plaintiff did not timely respond to the OSC by the deadline of April 8, 2013.

To date, plaintiff has not filed an amended pleading or complied with the OSC. In fact, plaintiff has not completed any filing in this case since filing the original pleading.

The undersigned's prior orders (Dkt. Nos. 3-4) each separately informed plaintiff that under Eastern District Local Rule 110, "[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, the undersigned's prior orders (Dkt. Nos. 3-4) also informed plaintiff that under Eastern District Local Rule 183(a),

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.

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."). A prior court order also 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. (Dkt. No. 4 at 2 (citing 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."), cert. denied, 506 U.S. 915 (1992); 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), cert. denied, 479 U.S. 829 (1986)).)

Plaintiff has had ample time to file an amended pleading and has not done so to date, despite having been warned of the consequences. Moreover, given that plaintiff is a pro se litigant, the undersigned gave him additional opportunities to amend the pleading to correct its deficiencies. (Orders, Dkt. Nos. 3-4.) Notwithstanding those opportunities, plaintiff has not filed an amended pleading

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, 501 U.S. at 44 (recognizing that a court "may act sua sponte to dismiss a suit for failure to prosecute"); Hells Canyon, 403 F.3d at 689 (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, 963 F.2d at 1260 ("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), cert. denied, 538 U.S. 909 (2003). 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, 963 F.2d at 1260. Specifically, the court must consider:

(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.