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Cho v. Select Portfolio Servicing, Inc.

United States District Court, E.D. California

April 5, 2018

JUNG HYUN CHO, et al., Plaintiffs,
v.
SELECT PORTFOLIO SERVICING, INC., et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.

         On January 16, 2018, United States District Court Judge Kimberly J. Mueller adopted the September 6, 2017 findings and recommendations (ECF No. 84) and granted defendants' motions to dismiss. (ECF No. 91.) At the same time, plaintiffs were afforded limited leave to amend, and were directed that any amended complaint was to be filed within 14 days. (Id.) Plaintiffs failed to file an amended complaint. Instead, on February 8, 2018, plaintiffs filed an interlocutory appeal of the court's January 16, 2018 order. (See ECF Nos. 93, 94.)

         Based on plaintiffs' failure to comply with the court's January 16, 2018 order, the court considered whether the action should be dismissed. Nevertheless, in light of plaintiffs' pro se status and the court's general preference to resolve actions on their merits, the court first attempted lesser measures. More specifically, on February 22, 2018, the court advised plaintiffs that their interlocutory appeal did not automatically stay the proceedings in this matter, and plaintiffs were afforded one final 14-day extension to file an amended complaint, consistent with the court's January 16, 2018 order, or to dismiss the matter. (ECF No. 96 at 1-2.) Plaintiffs were explicitly advised that failure to file an amended complaint “may result in monetary sanctions, or a recommendation to dismiss this action for failure to prosecute.” (Id. at 2.)

         Although the applicable deadline has now passed, plaintiffs have failed to file an amended complaint or to dismiss this matter. Furthermore, plaintiffs have not attempted to stay this matter, pending the interlocutory appeal, nor have they requested additional time to file an amended complaint. Therefore, the court recommends dismissal at this juncture.

         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). 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 or default).

         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 merits; and (5) the availability of less drastic alternatives.

Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002); Ghazali, 46 F.3d at 53. The Ninth Circuit Court of Appeals has stated that “[t]hese 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.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).

         Although involuntary dismissal can be a harsh remedy, on balance the five relevant factors weigh in favor of dismissal here. The first two Ferdik factors strongly support dismissal, given that plaintiffs' failure to comply with the court's orders and failure to prosecute their case have unreasonably delayed the progress of this litigation. The third Ferdik factor also favors dismissal. Defendants have already appeared in this matter and expended energy and resources, filing motions to dismiss and oppositions to plaintiffs' motions. (ECF Nos. 17, 19, 23, 28, 30, 32, 52-60.) Plaintiff's failure to prosecute the case has hampered defendants' ability to move this case forward towards resolution.

         Additionally, the fifth Ferdik factor, which considers the availability of less drastic measures, also supports dismissal. As noted above, the court has already attempted less drastic measures prior to recommending dismissal. However, plaintiff has failed to respond to the court's January 16, 2018 order or its subsequent February 22, 2018 order. Furthermore, the court finds no suitable alternative to dismissal at this juncture. Given plaintiff's complete failure to respond to the court's prior orders and instructions, the imposition of monetary sanctions would be futile, and the court is unable to frame any meaningful issue or evidentiary sanctions based on the limited record before it.

         Finally, the court finds that the fourth Ferdik factor, which addresses the public policy favoring disposition of cases on the merits, does not materially counsel against dismissal. If anything, a disposition on the merits has been hindered by plaintiffs' failure to comply with the court's orders and to prosecute their case. In any ...


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