Federal Deposit Insurance Corporation v. Christine K Yost et al
Filing
31
MINUTES (IN CHAMBERS) COURT ORDER by Judge Percy Anderson. Pursuant to Local Rule 16 and this Courts October 12, 2011 Scheduling Order, plaintiff Federal Deposit Insurance Corporation (Plaintiff) was required to file certain pretrial documents with the Court by May 4, 2012, including but not limited to, the Proposed Joint Pretrial Conference Order, Joint Exhibit and Witness Lists, Contentions of Fact and Law, and a Status Report Regarding Settlement. Plaintiff has violated the Local Rules and t his Courts Scheduling Order by failing to lodge or file any pretrial documents. As a result of Plaintiffs violation of the Courts Scheduling Order, this action is dismissed without prejudice. See Fed. R. Civ. P. 41(b); see also Yourish, 191 F.3d at 986-88; Ferdik, 963 F.2d at 1260. The Pretrial Conference scheduled for May 18, 2012, and the Trial scheduled for June 12, 2012, are vacated. SEE ORDER. Case Terminated. Made JS-6. (im)
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JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-5413 PA (PJWx)
Title
F.D.I.C. v. Christine Yost, et al.
Present: The
Honorable
Date
May 10, 2012
PERCY ANDERSON, UNITED STATES DISTRICT JUDGE
Paul Songco
Not Reported
N/A
Deputy Clerk
Court Reporter
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
None
None
Proceedings:
IN CHAMBERS - COURT ORDER
Pursuant to Local Rule 16 and this Court’s October 12, 2011 Scheduling Order, plaintiff Federal
Deposit Insurance Corporation (“Plaintiff”) was required to file certain pretrial documents with the
Court by May 4, 2012, including but not limited to, the Proposed Joint Pretrial Conference Order, Joint
Exhibit and Witness Lists, Contentions of Fact and Law, and a Status Report Regarding Settlement.
Plaintiff has violated the Local Rules and this Court’s Scheduling Order by failing to lodge or file any
pretrial documents.
This Court’s Scheduling Order specifically warns that “[t]he failure to attend the [Final Pretrial
Conference] or to submit in conformity with this order, the jury instructions, pre-trial exhibit stipulation,
joint statement of the case, voir dire questions, summary of witness testimony and times estimates,
proposed Pretrial Conference Order or the memorandum of contentions of fact and law may result in the
dismissal of the action, striking the answer and entering a default, and/or the imposition of sanctions.”
Dismissal is appropriate here because Plaintiff has failed to adequately prosecute this action or
comply with the Court’s orders. Federal Rule of Civil Procedure 41(b) provides that a defendant may
move for dismissal of an action for “failure of the plaintiff to prosecute or to comply with these rules or
any order of court.” Although Rule 41(b) provides for dismissal on the motion of the defendant, the
Court can also dismiss an action sua sponte pursuant to Rule 41(b). See Link v. Wabash R.R. Co., 370
U.S. 626, 629-30, 82 S. Ct. 1386, 1388, 8 L. Ed. 2d 734 (1962); see also Alexander v. Pac. Mar. Ass’n,
434 F.2d 281, 283-84 (9th Cir. 1970). The permissive language of Rule 41 — that defendant “may”
move for dismissal — does not limit the Court’s ability to dismiss sua sponte if the defendant makes no
motion for dismissal. Link, 370 U.S. at 630, 82 S. Ct. at 1388-89. The Court has the inherent power to
achieve the orderly and expeditious disposition of cases by dismissing actions pursuant to Rule 41(b)
with prejudice for failure to prosecute or for failure to comply with a court order. See id. at 629-30, 82
S. Ct. at 1388-89 (dismissal for failure to prosecute); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.
1992) (same); Yourish v. Cal. Amplifier, 191 F.3d 983, 987-88 (9th Cir. 1999) (dismissal for failure to
comply with court order).
In Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986), the Ninth Circuit set forth five factors
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 1 of 2
JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-5413 PA (PJWx)
Date
Title
May 10, 2012
F.D.I.C. v. Christine Yost, et al.
for a district court to consider before resorting to the penalty of dismissal: “(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.” Id. at 1423. Cases involving sua sponte dismissal merit special focus on
considerations relating to the fifth Henderson factor. Hernandez v. City of El Monte, 138 F.3d 393, 399
(9th Cir. 1998). Dismissal is appropriate “where at least four factors support dismissal, or where at
least three factors ‘strongly’ support dismissal.” Id. (internal citations omitted) (citing Ferdik, 963 F.2d
at 1263).
Here, in assessing the first Henderson factor, the public’s interest in expeditious resolution of
litigation will be satisfied by a dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)
(citing Yourish, 191 F.3d at 990 (public’s interest in expeditious resolution of litigation always favors
dismissal)). Relatedly, with respect to the second factor, the Court’s need to manage its docket will be
served by dismissal. See id.
The third Henderson factor at least marginally favors dismissal. The defendants may be further
prejudiced unless the complaint is dismissed. See Yourish, 191 F.3d at 991; Pagtalunan, 291 F.3d at
642 (holding that failing to timely amend risks prejudice and can justify dismissal).
In considering the fourth and fifth Henderson factors, this Court’s October 12, 2011 Scheduling
Order, as noted above, warned Plaintiff that the failure to attend the Final Pretrial Conference or to
submit the required pretrial documents may result in the dismissal of the action. Despite this warning,
Plaintiff failed to submit any pretrial documents by the date set by the Court. Additionally, the Court
intends to dismiss this action without prejudice. Accordingly, the fifth Henderson factor favors
dismissal because the Court has adopted the “less-drastic” sanction of dismissal without prejudice. See
McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (district court should first consider less drastic
alternatives to dismissal with prejudice).
As a result of Plaintiff’s violation of the Court’s Scheduling Order, this action is dismissed
without prejudice. See Fed. R. Civ. P. 41(b); see also Yourish, 191 F.3d at 986-88; Ferdik, 963 F.2d at
1260. The Pretrial Conference scheduled for May 18, 2012, and the Trial scheduled for June 12, 2012,
are vacated.
IT IS SO ORDERED.
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CIVIL MINUTES - GENERAL
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