Fabionar v. First Federal Bank of California et al
Filing
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ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 8/1/12. (lrc, COURT STAFF) (Filed on 8/14/2012)
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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JOSELITO FABIONAR, individuals, on
Case No: C 12-0991 SBA
8 behalf of themselves and all others similarly
situated,
ORDER DISMISSING ACTION
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Plaintiffs,
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vs.
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FIRST FEDERAL BANK OF CALIFORNIA,
12 as the Original Lender; SEASIDE
FINANCIAL CORPORATION, as
13 the Original Trustee; COMMONWEALTH
LAND TITLE, Title Company; ONE WEST
14 BANK, as Sub Servicer; AURORA LOAN
SERVICES LLC, as the PSA Master
15 Servicer; LEHMAN BROTHERS
HOLDINGS INC. PSA Sponsor and Seller;
16 STRUCTURED ASSET SECURITIES
CORPORATION, as PSA Depositor;
17 CITIBANK, N.A., as PSA Trustee;
LASALLE BANK, N.A. U.S. BANK, N.A.
18 WELLS FARGO BANK, N.A. PSA
Custodian; LEHMAN XS TRUST, SERIES
19 2005-3, as the PSA Trust Issuing Entity; TD
SERVICE COMPANY, as the Foreclosing
20 Trustee; and DOES 1 THROUGH 100,
INCLUSIVE
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Defendants.
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On February 27, 2012, Plaintiff Joselito Fabionar ("Plaintiff"), proceeding pro se,
brought the instant action against Defendants alleging various claims arising out of a home
loan and the initiation of foreclosure proceedings. See Compl., Dkt. 1. On April 17, 2012,
Defendant Wells Fargo Bank, N.A. ("Wells Fargo") filed a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Dkt. 3. On May 7, 2012, Defendant
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Aurora Loan Service, LLC ("Aurora") filed a motion to dismiss under Rule 12(b)(6). Dkt.
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13. Under Civil Local Rule 7-3, a party must file an opposition or statement of non-
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opposition to a motion no later than fourteen days (14) after the motion is filed. See N.D.
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Cal. Civ. L.R. 7-3(a), (b).1 This Court's Standing Orders specifically warn that "failure of
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the opposing party to file a memorandum of points and authorities in opposition to any
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motion shall constitute a consent to the granting of the motion." Civil Standing Orders at 5,
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Dkt. 21. Plaintiff did not file a timely response to either of the motions to dismiss. Thus,
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on July 12, 2012, the Court sua sponte granted Plaintiff a 10-day extension of time to
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respond to the motions. Dkt. 26. The Court warned Plaintiff that if he failed to timely
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respond to the motions, the Court would dismiss this action under Rule 41(b) of the Federal
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Rules of Civil Procedure for failure to comply with a Court Order. Id. To date, Plaintiff
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has not filed anything in response to the motions or the Court's July 12, 2012 Order.
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"Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an
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action for failure to comply with any order of the court." Ferdik v. Bonzelet, 963 F.2d
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1258, 1260 (9th Cir. 1992). As such, the failure to file an opposition to a motion to dismiss
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in the manner prescribed by the Court's Local Rules is a proper ground for dismissal.
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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). "In determining whether to
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dismiss a claim for failure to prosecute or failure to comply with a court order, the Court
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must weigh the following factors: (1) the public's interest in expeditious resolution of
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litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to
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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public
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policy favoring disposition of cases on their merits." Pagtalunan v. Galaza, 291 F.3d 639,
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642 (9th Cir. 2002).
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In the instant case, the Court finds that the above-referenced factors weigh in favor
of dismissal. With regard to the first factor, "[t]he public's interest in expeditious resolution
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The deadline to file an opposition is extended by 3 days if the motion was not filed
and served through the Court's Electronic Case Filing ("ECF") system and was served
28 pursuant to Federal Rule of Civil Procedure 5(b)(2)(C), (D), (E) or (F). Civ. L.R. 7-3(a).
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of litigation always favors dismissal." Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th
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Cir. 1999). This is particularly true in the instant case where Plaintiff has impeded the
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Court's ability to move this case forward by failing to respond to the motions to dismiss or
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to the Court's July 12, 2012 Order.
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The second factor also militates in favor of dismissal. See Pagtalunan, 291 F.3d at
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642 ("It is incumbent upon the Court to manage its docket without being subject to routine
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noncompliance of litigants"); Yourish, 191 F.3d at 990 (recognizing court's need to control
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its own docket); see also Ferdik, 963 F.2d at 1261 (non-compliance with a court's order
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diverts "valuable time that [the court] could have devoted to other major and serious
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criminal and civil cases on its docket").
The third factor, the risk of prejudice to the defendants, generally requires that "a
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defendant . . . establish that plaintiff's actions impaired defendant's ability to proceed to trial
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or threatened to interfere with the rightful decision of the case." Pagtalunan, 291 F.3d at
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642. At the same time, the Ninth Circuit has "related the risk of prejudice to the plaintiff's
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reason for defaulting." Id. Here, Plaintiff has offered no explanation for his failure to
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respond to the motions to dismiss, nor is any apparent from the record. Indeed, Plaintiff
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has had almost three months to prepare a response to Aurora's motion to dismiss and over
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three months to prepare a response to Well's Fargo's motion to dismiss. These facts weigh
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strongly in favor of dismissal. See Yourish, 191 F.3d at 991; Ghazali, 46 F.3d. at 54.
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As to the fourth factor, the Court has already considered less drastic alternatives to
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dismissal. As noted, the Court's Standing Orders warn that as a consequence of a party's
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failure to oppose a motion, the Court will construe such inaction as a consent to the
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granting of the motion. In addition, the Court sua sponte afforded Plaintiff a second
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opportunity to oppose the motions to dismiss (or file statements of non-opposition) and
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warned him that the failure to respond to the motions would result in the dismissal of this
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action. "[A] district court's warning to a party that failure to obey the court's order will
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result in dismissal can satisfy the 'consideration of [less drastic sanctions]' requirement."
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Ferdik, 963 F.2d at 1262.
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The final factor, which favors disposition of cases on the merits, by definition,
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weighs against dismissal. Pagtalunan, 291 F.3d at 643 ("Public policy favors disposition of
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cases on the merits. Thus, this factor weighs against dismissal.").
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In sum, the Court concludes that four of the five relevant factors weigh strongly in
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favor of dismissing this action in its entirety. Pagtalunan, 291 F.3d at 643 (affirming
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dismissal where three factors favored dismissal, while two factors weighed against
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dismissal).2 Accordingly,
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IT IS HEREBY ORDERED THAT the instant action is DISMISSED WITHOUT
PREJUDICE pursuant to Rule 41(b). The Clerk shall close the file and terminate all
pending matters.
IT IS SO ORDERED
Dated: 8/1/12
_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge
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The rationale for dismissing this action applies equally to the remaining unserved
defendants. See Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742-743 (9th Cir.
27 2008) ("As a legal matter, we have upheld dismissal with prejudice in favor of a party
which had not appeared, on the basis of facts presented by other defendants which had
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
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JOSELITO FABIONAR,
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Plaintiff,
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v.
FIRST FEDERAL BANK OF CALIFORNIA et
al,
Defendant.
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Case Number: CV12-00991 SBA
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CERTIFICATE OF SERVICE
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
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That on August 14, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.
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Joselito Fabionar
27624 Baldwin Street
Hayward, CA 94544
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Dated: August 14, 2012
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk
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