(PS) Molitvenik et al v. Bank of America Home Loans, et al.,, No. 2:2010cv00906 - Document 14 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/14/10 RECOMMENDING that this action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). Referred to Judge Frank C. Damrell, Jr; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)

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(PS) Molitvenik et al v. Bank of America Home Loans, et al., Doc. 14 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 TATYANA MOLITVENIK, et al., 10 11 Plaintiff, CIV S-10-0906 FCD GGH PS vs. 12 13 BANK OF AMERICA HOME LOANS a/k/a/ BANK OF AMERICA, et al., FINDINGS & RECOMMENDATIONS 14 Defendants. 15 16 / This action was referred to the undersigned pursuant to Local Rule 72-302(c)(21). 17 This action was removed from state court on April 15, 2010. In the order requiring joint status 18 report, filed April 15, 2010, plaintiffs were advised of the requirement to obey federal and local 19 rules, as well as orders of this court, and the possibility of dismissal for failure to do so. 20 Defendants filed an amended motion to dismiss on April 23, 2010, to which plaintiffs did not 21 respond. By order filed July 22, 2010, the hearing on the motion was vacated due to plaintiffs’ 22 failure to file oppositions. 23 Although the court liberally construes the pleadings of pro se litigants, they are 24 required to adhere to the rules of court. As set forth in the district court’s order requiring status 25 report, failure to obey local rules may not only result in dismissal of the action, but “no party will 26 be entitled to be heard in opposition to a motion at oral arguments if opposition has not been 1 Dockets.Justia.com 1 timely filed by that party.” E. D. Cal. L. R. 230(c). More broadly, failure to comply with the 2 Local Rules or “any order of the court may be grounds for imposition . . . of any and all sanctions 3 authorized by statute or Rule or within the inherent power of the Court.” E. D. Cal. L. R. 110; 4 see also E. D. Cal. L. R. 183 (requiring compliance with the Local and Federal Rules by pro se 5 litigants). 6 “Failure to follow a district court’s local rules is a proper ground for dismissal.” 7 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The court should consider: (1) the public’s 8 interest in expeditious resolution of litigation, (2) the court’s need to manage its docket, (3) the 9 risk of prejudice to the defendants, (4) the public policy favoring disposition of cases on their 10 merits, and (5) the availability of less drastic sanctions. Similar considerations authorize 11 dismissal of an action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). Link v. Wabash 12 R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). 13 Moreover, failure to obey court orders is a separate and distinct ground for imposing the sanction 14 of dismissal. See Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 15 (setting forth same factors for consideration as Ghazali). 16 The court has considered the factors set forth in Ghazali. “[T]he key factors are 17 prejudice and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th 18 Cir.1990). Defendants are clearly prejudiced by the requirement of defending an abandoned 19 case, and this court is put in the untenable position of expending limited judicial resources to 20 decide such a case on the merits. The public’s interest in expeditious resolution of litigation, the 21 court’s need to manage its docket, and the unsuitability of a less drastic sanction, direct that this 22 case be dismissed. In sum, the court now has had much experience resolving pro se cases 23 brought for the purpose of delaying the inevitable foreclosure of one’s home, with the same result 24 on the merits, that the law does not provide a remedy for this unfortunate situation. 25 26 Accordingly, IT IS RECOMMENDED that this action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 2 1 These findings and recommendations are submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 3 fourteen (14) days after being served with these findings and recommendations, any party may 4 file written objections with the court and serve a copy on all parties. Such a document should be 5 captioned “Objections to Magistrate Judge”s Findings and Recommendations.” Any reply to the 6 objections shall be served and filed within fourteen (14) days after service of the objections. The 7 parties are advised that failure to file objections within the specified time may waive the right to 8 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 DATED: September 14, 2010 /s/ Gregory G. Hollows ___________________________ GREGORY G. HOLLOWS U. S. MAGISTRATE JUDGE 10 11 12 GGH:076/Molitvenik0906.41.wpd 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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