LUIS CRESCITELLI V. BANK OF AMERICA, No. 12-56920 (9th Cir. 2014)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 15 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LUIS M. CRESCITELLI; RYAN CALVO, Plaintiffs - Appellants, No. 12-56920 D.C. No. 8:12-cv-00625-DOCRNB v. MEMORANDUM* BANK OF AMERICA, NATIONAL ASSOCIATION, Defendant - Appellee. Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding Submitted April 10, 2014** Pasadena, California Before: FARRIS and HURWITZ, Circuit Judges, and FRIEDMAN, Senior District Judge.*** * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Paul L. Friedman, Senior District Judge for the U.S. District Court for the District of Columbia, sitting by designation. Luis Crescitelli and Ryan Calbo (Plaintiffs) appeal a district court judgment entered pursuant to Federal Rule of Civil Procedure 41(b) dismissing this diversity action against Bank of America after Plaintiffs failed to meet a court-ordered deadline for filing an amended complaint. We review the dismissal for an abuse of discretion, Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), and affirm. After removal, Bank of America filed a motion to dismiss for failure to state a claim. Plaintiffs did not file an opposition to that motion. Rather than grant the motion outright, the district court instead dismissed the complaint without prejudice, giving Plaintiffs leave to file an amended complaint within thirteen days of its order. The order expressly warned that failure to file an amended complaint would result in dismissal with prejudice. Plaintiffs filed an amended complaint two days after the deadline. The district court therefore did not abuse its discretion in dismissing this action with prejudice for failing to comply with its express order. See Pagtalunan v. Galaza, 291 F.3d 639, 642 43 (9th Cir. 2002). Although Plaintiffs claim that a timely filing was submitted and then rejected by the clerk, the district judge correctly noted that the clerk s record belies that contention. AFFIRMED. 2
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