-GSA Spence v. Wells Fargo Bank., N.A., No. 1:2010cv02057 - Document 30 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED for failure to comply with a court order. Motion to Dismiss is referred to Judge Ishii; Objections to F&R due by 11/21/2011, signed by Magistrate Judge Gary S. Austin on 10/19/2011. (Kusamura, W)
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-GSA Spence v. Wells Fargo Bank., N.A. Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 MICHELE A. SPENCE, 11 12 13 14 15 16 ) ) ) Plaintiff, ) ) v. ) ) WELLS FARGO BANK, N.A., ) ) ) Defendant. ) ) _____________________________________ ) 1:10-cv-2057 AWI GSA FINDINGS AND RECOMMENDATIONS TO DISMISS THIS ACTION FOR PLAINTIFF’S FAILURE TO OBEY A COURT ORDER (Doc. 23) 17 18 RELEVANT PROCEDURAL BACKGROUND 19 On October 22, 2010, Plaintiff, Michele Spence (“Plaintiff”), appearing pro se, filed this 20 action in the Fresno County Superior Court (Case No. 10-CE-CG-03734) alleging illegal conduct 21 by Defendant, Wells Fargo Bank, N.A. (“Defendant”). The complaint alleges that Defendant 22 improperly attempted to foreclose on Plaintiff’s property. (Doc. 1). 23 On November 4, 2010, Defendant removed the action to this Court. (Doc. 1). On January 24 18, 2011, Defendant filed a Motion to Dismiss. (Doc. 10). On April 18, 2011, the Honorable 25 Oliver W. Wanger issued an order granting Defendant’s Motion to Dismiss but gave Plaintiff 26 leave to file an amended complaint. (Doc. 20). Plaintiff was ordered to file an amended 27 28 1 Dockets.Justia.com 1 complaint within thirty days of the Court’s order. Plaintiff did not file an amended complaint. 2 Subsequently, Plaintiff was also ordered to file a consent form indicating whether or not she 3 consented to Magistrate Judge jurisdiction. (Doc. 25). Plaintiff also failed to respond to this 4 order. 1 5 On July 29, 2011, Defendant filed a second Motion to Dismiss requesting that the case be 6 dismissed due to Plaintiff’s failure to file an amended complaint pursuant to the Court’s order.2 7 (Doc. 23). Plaintiff has not filed an opposition to the Motion to Dismiss, nor has she filed an 8 amended complaint as directed. 9 10 DISCUSSION Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 11 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 12 sanctions . . . within the inherent power of the Court.” District courts have the inherent power to 13 control their dockets and “in the exercise of that power, they may impose sanctions including, 14 where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th 15 Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute 16 an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. 17 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik 18 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an 19 order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 20 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 21 apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal 22 1 23 24 25 Plaintiff was ordered to file a consent form due to the departure of the Honorable Oliver W . W anger from this Court. However, as of the date of these findings and recommendations, Plaintiff has not filed a consent form and the case was reassigned to the Honorable Anthony W . Ishii, Chief United States District Court Judge and United States Magistrate Judge Gary S. Austin. Accordingly, this decision is issued via findings and recommendations. 2 27 The Motion to Dismiss was scheduled to be heard by the Honorable Oliver W . W anger on September 12, 2011. (Doc. 24). Pursuant to Local Rule 230(c), any opposition to the motion was to be filed no later than fourteen days prior to the scheduled hearing date which was August 30, 2011. Plaintiff did not file an opposition, and the matter was taken off calendar due to Judge W anger’s departure. 28 2 26 1 for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 2 1986) (dismissal for failure to lack of prosecution and failure to comply with local rules). In 3 determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or 4 failure to comply with local rules, the Court must consider several factors: (1) the public’s 5 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the 6 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 7 merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; 8 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; 9 Ghazali, 46 F.3d at 53. 10 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 11 litigation and the Court’s interest in managing the docket weigh in favor of dismissal, as this case 12 has been pending since November, 2010, and there is no indication that Plaintiff intends to 13 prosecute this action. Henderson v. Duncan, 779 F.2d at 1424. Plaintiff has failed to file an 14 amended complaint as directed, and she has failed to return consent forms as ordered which 15 indicates that she no longer wishes to prosecute this action. The third factor, risk of prejudice, 16 also weighs in favor of dismissal, since a presumption of injury arises from the occurrence of 17 unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 18 1976). The fourth factor - public policy favoring disposition of cases on their merits - is greatly 19 outweighed by the factors in favor of dismissal discussed herein. Thompson, 782 F.2d at 831; 20 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; 21 Ghazali, 46 F.3d at 53. Finally, Plaintiff failed to file a response to Defendant’s Motion to 22 Dismiss as required. Thus, she was aware that her case could be dismissed and it appears that no 23 lesser sanction is appropriate in this instance. 24 25 26 RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for a failure to comply with a court order. Moreover, in light of the this Court’s decision, it is 27 28 3 1 recommended that Defendant’s Motion to Dismiss be DENIED WITHOUT PREJUDICE as it is 2 moot. 3 These findings and recommendations are submitted to the district judge assigned to this 4 action, pursuant to Title 28 of the United States Code section 636(b)(1)(B). Within thirty (30) 5 days of service of this recommendation, any party may file written objections to these findings 6 and recommendations with the Court and serve a copy on all parties. Such a document should be 7 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district 8 judge will review the magistrate judge’s findings and recommendations pursuant to Title 28 of 9 the United States Code section 636(b)(1)(C). The parties are advised that failure to file 10 objections within the specified time may waive the right to appeal the district judge’s order. 11 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 14 IT IS SO ORDERED. Dated: cf0di0 October 19, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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