United States District Court, E.D. California
FINDINGS AND RECOMMENDATION THAT THE DISTRICT COURT
DISMISS THIS CASE
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
5, 2017, the undersigned filed an order to show cause (the
“OSC”), which included a warning to Plaintiff
that the undersigned would recommend dismissal of this matter
if Plaintiff failed to file a statement by no later than June
29, 2017 showing cause as to why dismissal was not warranted.
(Doc. 5.) To date, Plaintiff has not responded to the OSC.
Accordingly, as discussed herein, the undersigned RECOMMENDS
that the presiding district court judge DISMISS this case, in
February 2, 2017, Plaintiff filed a pro se Complaint
against Wells Fargo Home Mortgage and Fay Servicing LLC, in
which Plaintiff alleged only that “Wells Fargo violated
several [b]anking laws and sold [Plaintiff's] note to Fay
Servicing without [Plaintiff's] knowledge.” (Doc. 1
at 5.) On April 12, 2017, the undersigned entered an order
screening Plaintiff's Complaint (the “Screening
Order”). (Doc. 4.) In this Screening Order, the
undersigned found that Plaintiff's Complaint was
deficient insofar as it (1) failed to “identify the
specific federal statute upon which [Plaintiff's] claims
[are] based, ” (2) provided only a single conclusory
allegation, (3) failed to “explain the underlying
transaction giving rise to Plaintiff's claims, ”
and (4) did not “allow the Court to determine whether
Plaintiff's claims are properly brought in an action in
the district court or must be brought (or should have been
brought) in [an associated] bankruptcy action.”
(Id. at 3-4.) For these reasons, the undersigned
found that the Complaint “fail[ed] to state a claim
upon which relief can be granted” and dismissed the
Complaint with leave to amend within thirty days of the entry
of the Screening Order. (Id. at 4.) The undersigned
also cautioned Plaintiff in the Screening Order that,
“[i]f Plaintiff fails to file an amended complaint
within thirty . . . days of [the Screening Order], this
action will be dismissed without prejudice for failure to
state a claim.” (Id.)
failed to file an amended complaint within thirty days of the
entry of the Screening Order. Consequently, the undersigned
entered an Order to Show Cause Why this Case Should Not Be
Recommended for Dismissal (the “OSC”) on June 5,
2017. (Doc. 5.) In the OSC, the undersigned ordered Plaintiff
“to show cause within twenty-one . . . days of the date
of service of [the OSC] why this action should not be
dismissed for his failure to comply with the [Screening
Order] by not filing an amended complaint within the
specified period of time.” (Id. at 1-2.) The
undersigned further cautioned Plaintiff “that, if he
fails to file this statement within twenty-one . . . days of
the date of service of [the OSC], the [undersigned] will
recommend to the presiding district court judge that this
action be dismissed, in its entirety.” (Id. at
than twenty-one days have passed since the OSC was served on
Plaintiff, yet Plaintiff has not complied with the OSC by
filing a statement as to why this action should not be
dismissed. Additionally, there is no indication on the docket
for this case that Plaintiff did not receive either the
Screening Order or the OSC.
Rule 110 provides that the “[f]ailure of counsel or of
a party to comply with these [Local] 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.” “District
courts have inherent power to control their dockets”
and “[i]n the exercise of that power they may impose
sanctions including, where appropriate, . . .
dismissal.” Thompson v. Hous. Auth. of City of
L.A., 782 F.2d 829, 831 (9th Cir. 1986) (citing Link
v. Wabash R.R. Co., 370 U.S. 626 (1961)).
“Dismissal . . . is so harsh a penalty it should be
imposed as a sanction only in extreme circumstances.”
Id. (citations omitted). Nonetheless, courts have
found that dismissal with prejudice is warranted where a
party fails “to prosecute an action, ”
“obey a court order, ” or “comply with
local rules.” Tolle v. Portfolio Recovery Assocs.
LLC, Case No. 1:15-cv-01797-LJO-SKO, 2017 WL 1079786, at
*1 (E.D. Cal. Mar. 21, 2017) (collecting cases).
Ninth Circuit has stated that “[c]ourts are to
weigh” the following “five factors in deciding
whether to dismiss a case for failure to comply with a court
order”: (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 merits,
” and (5) “the availability of less drastic
sanctions.” In re Phenylpropanolamine (PPA) Prods.
Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006)
(citation omitted). “These factors are ‘not a
series of conditions precedent before the judge can do
anything, ' but a ‘way for a district judge to
think about what to do.'” Id. (quoting
Valley Eng'rs Inc. v. Elec. Eng'g Co., 158
F.3d 1051, 1057 (9th Cir. 1998)). “The appropriateness
of a sanction is within the discretion of the [c]ourt.”
Raygoza v. City of Fresno, 297 F.R.D. 603, 606 (E.D.
present matter, the pertinent factors weigh in favor of
dismissing this action. Turning initially to the first
factor, the public's interest in expeditious resolution
of litigation clearly weighs in favor of dismissal. Plaintiff
has failed to demonstrate any interest in litigating this
case and there has been no indication that Plaintiff will
litigate this action in the future to achieve any form of
merits-based resolution, let alone an expeditious resolution
of the litigation. The first factor thus weighs in favor of
dismissal. See, e.g., Yourish v. Cal.
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)
(“[T]he public's interest in expeditious resolution
of litigation always favors dismissal.”).
the second factor, Plaintiff has hindered the Court's
ability to manage its docket by failing to (1) file an
amended complaint within the time provided by the undersigned
in the Screening Order, or (2) respond to the OSC. This
factor therefore weighs in favor of dismissal. See,
e.g., Armstrong v. Spearman, No.
1:13-cv-00246-AWI-SAB (PC), 2015 WL 5021664, at *2 (E.D. Cal.
Aug. 21, 2015) (“[T]he Eastern District of California
is one of the busiest federal jurisdictions in the United
States and its District Judges carry the heaviest caseloads
in the nation, [so] the [c]ourt's interest in managing
its docket weighs in favor of terminating the
action.”); cf. Gonzales v. Mills, No.
1:09-cv-1549 AWI DLB, 2011 WL 976713, at *5 (E.D. Cal. Mar.
16, 2011) (noting that courts in this District carry
“overly congested” dockets “and stalled
cases due to a lack of prosecution aggravate the
the third factor, Defendants will suffer substantial
prejudice if they are forced to litigate this case without
the involvement of Plaintiff, as any resolution may be
impossible. Cf. In re Phenylpropanolamine, 460 F.3d
at 1227 (“A defendant suffers prejudice if the
plaintiff's actions impair the defendant's ability to
go to trial or threaten to interfere with the rightful
decision of the case.” (citations omitted)).
Consequently this factor also weighs in favor of dismissal.
See, e.g., id. (“The law . . .
presumes prejudice from unreasonable delay.” (citations
next to the fifth factor, Plaintiff failed to respond to the
OSC despite the undersigned's clear warning regarding the
dispositive consequences of inaction. (See Doc. 27
at 2.) Plaintiff's failure to respond to the OSC is
itself sufficient to satisfy this factor. See, e.g.,
In re Phenylpropanolamine, 460 F.3d at 1229
(“Warning that failure to obey a court order will
result in dismissal can itself meet the consideration of