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Mayen v. Bank of America, N.A.

United States District Court, N.D. California

March 24, 2015

ADAN A. MAYEN, Plaintiff,
v.
BANK OF AMERICA N.A., et al., Defendants.

ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE RE: ECF NO. 33

JON S. TIGAR, District Judge.

On February 27, 2015, the Court issued an order to show cause why this case should not be dismissed for failure to prosecute pursuant to Rule 41 of the Federal Rules of Civil Procedure. ECF No. 33. Plaintiff did not respond to the order. The Court finds that Plaintiff has failed to prosecute this case and therefore will dismiss the case without prejudice.

I. BACKGROUND

On August 19, 2014, Plaintiff Adan Mayen filed this action, alleging various claims related to Defendants' foreclosure of his residential property. ECF No. 1. Shortly thereafter, Defendants filed motions to dismiss the action. ECF Nos. 6, 12. Plaintiff did not oppose the motions. Plaintiff also did not file a consent or declination to proceed before a United States Magistrate Judge, so the case was reassigned to the undersigned on October 8, 2014. ECF No. 19.

Defendants re-noticed their motions to dismiss before this Court, ECF Nos. 21, 22, and Plaintiff did not respond to the re-noticed motions. The Court also issued a sua sponte referral for the purpose of determining the relationship of this action to another action. ECF No. 23. Plaintiff did not respond to that referral.

On January 14, 2015, the Court issued an order granting the Defendants' motions to dismiss. ECF No. 31. The Court granted Plaintiff leave to amend his complaint, and set February 13, 2015 as the deadline for filing the amended complaint. Id. at 10. The Court cautioned Plaintiff that failure to file an amended complaint would result in his case being dismissed with prejudice. Id . Plaintiff did not file an amended complaint.

On February 27, 2015, the Court issued its order to show cause, asking Plaintiff to explain why this case should not be dismissed for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. ECF No. 33. The order to show cause advised Plaintiff that if he failed to respond, his complaint would be dismissed with prejudice. Id. at 1. Plaintiff was to respond to the order to show cause no later than March 20, 2015. Id . Plaintiff has not responded to the order to show cause.

II. LEGAL STANDARD

In the Ninth Circuit, "when a plaintiff fails to amend a complaint after the district court judge dismisses the complaint with leave to amend, the dismissal is typically considered a dismissal for failing to comply with a court order...." Yourish v. Cal. Amplifier, 191 F.3d 983, 986 (9th Cir. 1999). To determine whether to dismiss a claim for failure to comply with a court order, a court weighs the following factors: "(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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits." Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Dismissal is appropriate "where at least four factors support dismissal... or where at least three factors strongly support dismissal." Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citation and internal quotations omitted).

III. DISCUSSION

Four of the five Pagtalunan factors strongly support the dismissal of this action.

The first two factors-the public interest in expeditious resolution of litigation and the Court's need to manage its docket-relate to "the efficient administration of judicial business for the benefit of all litigants with cases pending." Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1279 (9th Cir. 1980). By failing to respond to or comply with court orders, Plaintiff has completely stalled this action, thereby depriving the Court of the ability to control the pace of its docket. In fact, Plaintiff has effectively not participated in this action since the complaint was filed in August 2014. Plaintiff is effectively clogging the Court's docket with unpursued claims, diverting time and attention from other litigants who wish to pursue their actions. These factors weigh strongly in favor of dismissal.

As to the third factor-the risk of prejudice to defendant-"a presumption of prejudice arises from the plaintiffs' failure to prosecute." Hernandez, 138 F.3d at 400. A plaintiff may rebut this presumption only "with an excuse for his delay that is anything but frivolous." Nealey, 662 F.2d at 1281. Plaintiff has provided no excuse for his failure to file an amended complaint, to respond to the order to show cause, or to pursue this action in any way. Actual prejudice arises where Defendants are unable to communicate with Plaintiff. Thus, this factor weighs strongly in favor of dismissal.

The fourth factor is the availability of less drastic sanctions. The Court gave Plaintiff multiple opportunities to respond to or comply with the Court's orders: an opportunity to file an amended complaint and an express opportunity to explain his lack of diligence in prosecuting the action. Plaintiff also had the opportunity to respond to Defendants' motions to dismiss, to the consent or declination to proceed before a magistrate judge, and to the Court's referral regarding relating ...


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