(PS) Lacayo v. Deutsche Bank, No. 2:2009cv02844 - Document 18 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 1/28/2010 recommending that this action be dismissed with prejudice. Objections to F&R due w/in 14 days. (Matson, R)
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(PS) Lacayo v. Deutsche Bank Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ANTHONY LACAYO, et al., 11 12 13 Plaintiffs, No. CIV S-09-2844 GEB KJM PS vs. DEUTSCHE BANK NATIONAL TRUST CO., et al., FINDINGS AND RECOMMENDATIONS 14 Defendants. 15 / 16 Defendants’ motion to dismiss came on regularly for hearing on January 27, 2010. 17 No appearance was made for plaintiffs. Kevin Broersma appeared telephonically for defendants. 18 Upon review of the documents in support, no opposition having been filed, and good cause 19 appearing, THE COURT FINDS AS FOLLOWS: 20 Plaintiffs filed this action in state court and the action was removed to this court 21 on October 13, 2009. On October 21, 2009, defendants filed a motion to dismiss, to which 22 plaintiffs did not timely respond. By order filed November 19, 2009, plaintiffs were given 23 additional time in which to file opposition to defendants’ motion and were cautioned that failure 24 to file opposition would be deemed as a statement of non-opposition. Plaintiffs still have not 25 filed an opposition and failed to appear at the hearing on the motion held on January 27, 2010. 26 1 Dockets.Justia.com 1 The Federal Rules of Civil Procedure provide for dismissal of actions based on 2 lack of prosecution. Fed. R. Civ. P. 41(b). Pro se litigants are bound by the rules of procedure, 3 even though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567 4 (9th Cir. 1987). In determining whether to dismiss for lack of prosecution, generally the court 5 considers (1) the public’s interest in expeditious resolution of litigation, (2) the court’s need to 6 manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy favoring 7 disposition of cases on their merits, and (5) the availability of less drastic sanctions. See, e.g., 8 Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996). The court may dismiss a case sua 9 sponte for lack of prosecution by the plaintiff. Hamilton Copper & Steel Corp. v. Primary Steel, 10 Inc., 898 F.2d 1428 (9th Cir. 1990). Sua sponte dismissal requires a “close focus” on 11 consideration of “less drastic alternatives” and whether or not there has been a “warning of 12 imminent dismissal of the case.” Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992). 13 In determining that this action will be dismissed, the court has considered all the 14 factors set forth in Al-Torki. The first two factors on their face favor the imposition of sanctions 15 in this case filed by plaintiffs which is now proceeding. Compare Wanderer v. Johnston, 910 16 F.2d 652, 656 (9th Cir. 1990). Regarding the third factor, defendants already have briefed their 17 motion to dismiss, and would be prejudiced by the need for further litigation of this matter 18 despite plaintiff’s non-responsiveness. Moreover, delay itself generally is prejudicial--witness 19 memories fade and evidence becomes stale or undiscoverable. While the fourth factor favors 20 resolution on the merits, in this case plaintiffs have declined to oppose the motion to dismiss and 21 have thus precluded the court’s evaluation of the potential merits of such an opposition. Under 22 these circumstances, the fourth factor is outweighed by the others. 23 Focusing on the fifth Al-Torki factor and warning regarding imminent dismissal, 24 as required by Oliva, the court in its November 19, 2009 order has advised plaintiffs that this 25 action is subject to dismissal, directed plaintiffs to file opposition, and granted ample additional 26 time to oppose the pending motion after plaintiffs failed to timely oppose defendants’ motions to 2 1 dismiss, all to no avail. From plaintiffs’ failure to respond to the most recent order and failure to 2 appear at the hearing on the motions to dismiss, the court finds that plaintiffs have abandoned 3 this litigation. The court therefore concludes there is no suitable alternative less drastic sanction 4 to dismissal. 5 6 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed with prejudice. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 9 fourteen days after being served with these findings and recommendations, any party may file 10 written objections with the court and serve a copy on all parties. Such a document should be 11 captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the 12 objections shall be served and filed within seven days after service of the objections. The parties 13 are advised that failure to file objections within the specified time may waive the right to appeal 14 the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: January 28, 2010. 16 17 18 19 20 21 22 23 24 25 006 26 lacayo.57 3
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