Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1991)

No. 88-5556.

United States Court of Appeals, Ninth Circuit.

Before REINHARDT and LEAVY, Circuit Judges, and KING^* , District Judge.

MEMORANDUM^** 

Money People, Inc. ("Money People") appeals the district court's order dismissing its action for lack of subject matter jurisdiction and for failure to prosecute. We affirm.

FACTS AND PROCEEDINGS

This action arose out of a foreclosure sale of a parcel of real property located at 5440-5444 South Crenshaw Boulevard, Los Angeles, California. Prior to the foreclosure sale, Money People allegedly had acquired title to the property by quit claim deed. The property was then used as collateral for a loan financed by the Small Business Administration ("SBA") in which the SBA was the beneficiary of the deed of trust. After Money People defaulted on the SBA loan, defendant National Foreclosure Service, Inc. ("NFS"),¹  through defendant Tony Pate, conducted a trustee sale. SBA thus acquired title to the real property.

Money People, by its attorney Rudolph L. Dyson, filed an action in state court to set aside the trustee sale, alleging breach of contract, fraud, and deceit. SBA removed the case to federal court. On November 4, 1986, the district court ordered Money People to show cause why Local Rule 6.2 of the United States District Court for the Central District of California was not followed. Local Rule 6.2 requires parties to file a joint report on early meeting. Money People responded to the Order to Show Cause on November 25, 1986. Discovery was closed on July 15, 1987, and a pretrial conference was held on October 14, 1987.

NFS moved to dismiss on the ground of lack of prosecution pursuant to Fed. R. Civ. P. 41(b) and Local Rule 7.9 of the Central District of California. SBA also moved to dismiss for lack of subject matter jurisdiction, asserting that Money People had not exhausted its administrative remedies. Money People failed to respond to either motion.

The motions to dismiss were heard by the district court on November 16, 1987. At that time, neither Money People nor its attorney, Mr. Dyson, appeared. Instead, Clifton Albright, who never became attorney of record, was present. The record shows that he said: "Your honor, I am appearing especially on behalf of Mr. Hanken (phonetic) from Money People Inc." Mr. Albright asked for a continuance of the matter for a week so that he could inquire of Mr. Hanken about certain documents. The district court dismissed Money People's complaint for lack of prosecution pursuant to Local Rule 7.9. The district court also found that Money People had not exhausted its administrative remedies in regard to its tort claims against SBA and that it had failed to prosecute its action. Money People timely appeals.

DISCUSSION

We agree with the district court that dismissal of Money People's claims against SBA for fraud and deceit is appropriate. Pursuant to 28 U.S.C. § 2675, Money People is required to file an administrative claim before commencing a tort action against a federal agency. Money People failed to do so. Hence, because Money People failed to exhaust its administrative remedies, the district court lacked subject matter jurisdiction to hear its claim.

II. Dismissal of All Other Claims Against All Defendants

The district court dismissed Money People's action pursuant to Local Rules 7.6 and 7.9 of the Local Rules of the United States District Court for the Central District of California. District courts have the authority to promulgate local rules for the conduct of their business so long as such rules are consistent with the Federal Rules of Civil Procedure or acts of Congress. 28 U.S.C. § 2071; United States v. Warren, 601 F.2d 471, 473 (9th Cir. 1979). Local Rule 7.6 of the Central District of California requires each opposing party to file papers which state the evidence and the points and authorities upon which the party will rely. Local Rule 7.9 provides that " [p]apers not timely filed by a party including any memoranda or other papers required to be filed under this rule will not be considered and may be deemed by the Court consent to the granting or denying of the motion, as the case may be." C.D. Cal. R. 7.9.² 

We review a district court's order dismissing an action for lack of prosecution for an abuse of discretion. Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (per curiam). "A reviewing court cannot reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors." Baron Group of Capitan Grande Band of Mission Indians v. American Management & Amusement, Inc., 840 F.2d 1394, 1408 (9th Cir. 1987), cert. dismissed, 487 U.S. 1247 (1988). In determining whether an abuse of discretion has occurred, we consider "(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." Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1385 (9th Cir. 1988). We must also consider whether the district court gave Money People notice that dismissal was imminent. See West Coast Theater, 897 F.2d at 1523.

We conclude that the district court was correct in determining that dismissal was warranted pursuant to Local Rule 7.9. Money People had been given notice of the several motions and failed to file anything in response. NFS submitted affidavits in support of its motion which demonstrated that its attorney had difficulty contacting Money People's attorney and that Money People had not filed any documents as required in connection with the October 14 pretrial conference. Moreover, the district court acted pursuant to Local Rule 7.9 on the motion to dismiss, which itself is notice of the action being contemplated.

AFFIRMED.

REINHARDT, Circuit Judge, concurring:

I concur in the disposition because I construe it as holding that Money People's action against National Foreclosure Service was properly dismissed for failure to prosecute, not for Money People's failure to oppose the motion. The facts of this case evidence a series of failures to comply with court orders. Money People's failure to oppose the motion to dismiss was only the last in a series of examples demonstrating its chronic neglect of the case. Continuing failures to comply with the rules can ultimately lead to dismissal. See, e.g., West Coast Theater Corp. v. City of Portland, 897 F.2d 1519 (9th Cir. 1990). Under these facts, there was no abuse of discretion in the dismissal that took place.

I do not understand the disposition as standing for the proposition that the mere failure to oppose a motion as required by a local rule, even a motion to dismiss, is sufficient to warrant dismissal. I have serious doubts whether the failure to comply with a local rule, standing alone, can justify a district court in dismissing a case. Cf. Smith v. Frank, 91 D.A.R. 384 (Jan. 9, 1991) (district court erred in failing to accept plaintiff's timely filed but overly lengthy objections to magistrate's findings and conclusions, even though local rule prohibited objections from exceeding specified page limit).