United States District Court, E.D. California
JOHN CHARLES HEINRICH, an individual; and BOBBIE-ANN HEINRICH, an individual, Plaintiffs,
DITECH FINANCIAL, LLC, a Delaware Limited Liability Company; NBS DEFAULT SERVICES, LLC, a Texas Limited Liability Company; MRO INVESTMENT, INC., a California corporation; and DOES 1 through 20, inclusive, Defendants.
ORDER DISMISSING ACTION FOR PLAINTIFFS' FAILURE
TO PROSECUTE AND FAILURE TO OBEY COURT ORDERS
March 1, 2019, the court issued an order that, among other
things, granted defendant MRO Investment Inc.'s motion to
dismiss with leave to amend and directed plaintiffs, who are
proceeding pro se, to file within thirty (30) days
either an amended complaint or a notice indicating their
willingness to proceed only on the remaining claims. (Doc.
No. 31 at 11.) Despite the lapse of more than thirty days,
plaintiffs did not file an amended complaint or otherwise
communicate with the court.
on June 5, 2019, the court directed plaintiffs to show cause
in writing within fourteen (14) days why sanctions should not
be imposed for their failure to prosecute and failure to obey
a court order. (Doc. No. 37.) That order also cautioned
plaintiffs that failure to respond may result in the
imposition of sanctions, including possible dismissal of this
action. (Id. at 2.) More than fourteen days have
passed, and plaintiffs have failed to respond to the order to
show cause. In light of plaintiffs' repeated failures to
timely respond to orders of this court, it appears that they
no longer wish to prosecute this action but rather have
abandoned the litigation.
factors to be weighed in determining whether to dismiss a
case for lack of prosecution are as follows: (1) the public
interest in expeditious resolution of litigation; (2) the
court's need to manage its docket; (3) the risk of
prejudice to the defendant; (4) the public policy favoring
disposition on the merits; and (5) the availability of less
drastic sanctions. Hernandez v. City of El Monte,
138 F.3d 393, 398 (9th Cir. 1998); Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Carey
v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal
is a harsh penalty that should be imposed only in extreme
circumstances. Hernandez, 138 F.3d at 398;
Ferdik, 963 F.2d at 1260.
plaintiffs here are proceeding pro se, any
individual representing himself or herself without an
attorney is nonetheless bound by the Federal Rules of Civil
Procedure, the Local Rules, and all applicable law. Local
Rule 183(a). The public interest in expeditious resolution of
litigation, the court's need to manage its docket, and
the risk of prejudice to the defendants all support the
imposition of the sanction of dismissal here. Only the public
policy favoring disposition on the merits counsels against
dismissal. However, plaintiffs' failure to prosecute the
action makes disposition on the merits an
impossibility. Finally, with respect to availability of
less drastic sanctions, the court has considered alternative
measures. The court is mindful, however, that in previously
granting the withdrawal of plaintiffs' former counsel,
the court relied on counsel's representations that they
had been unable to contact their clients and that
communication had broken down. (See Doc. No. 31 at
9-11.) These representations, coupled with plaintiffs'
repeated failure to abide by court-ordered deadlines,
strongly suggest that plaintiffs have abandoned the
litigation. The issuance of yet another order to show cause
would likely be futile. Accordingly, this action will be
dismissed due to plaintiffs' failure to prosecute and
failure to comply with the court's orders. See
Fed. R. Civ. P. 41(b).
reasons set forth above,
1. This action is dismissed due to plaintiffs' failure to
prosecute and failure to obey court orders; and
2. The Clerk of the Court is directed to close this case.
 After this action was filed, defendant
Ditech Financial LLC (“Ditech”) filed a notice of
bankruptcy filing on February 20, 2019. (Doc. No. 30.) This
action is therefore stayed against it pursuant to 11 U.S.C.
§ 362(a)(1), which operates as an automatic stay of
“the commencement or continuation . . . of a judicial,
administrative, or other action or proceeding against the
debtor.” Dismissal of this action as to all defendants,
including Ditech, is not a violation of the automatic stay,
however. In the Ninth Circuit, a
“post-[bankruptcy]-filing dismissal in favor of the
bankrupt of an action that falls within the purview of the
[§ 362(a)] automatic stay violates the stay where the
decision to dismiss first requires the court to consider
other issues presented by or related to the underlying case.
In other words, thinking about the issues violates the
stay.” Dean v. Trans World Airlines, Inc., 72
F.3d 754, 756 (9th Cir. 1995). Here, the court's
dismissal of this action for failure to prosecute does not
implicate the underlying issues or merits of this action.
See O'Donnell v. Vencor Inc., 466 F.3d 1104,
1108 (9th Cir. 2006) (holding that dismissal of employment
discrimination complaint for failure to prosecute did not
violate automatic stay).
 If plaintiffs receive notice of this
dismissal and wish to continue to prosecute this case, they
may file a motion pursuant to Rule 60(b), which provides that
“[o]n motion and just terms, the court may relieve a
party or its legal representative from a final judgment,
order, or proceeding . . . .” Fed.R.Civ.P. 60. See
United States v. Sparks,685 F.2d 1128, 1130 (9th Cir.
1982) (Rule 60(b) permits judgments to be set aside in
“extraordinary circumstances” in which