Lopez et al v. Mortgage Electronic, Registration Systems As Nominee et al, No. 1:2010cv00574 - Document 7 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS re: Dismissal of Action. Referred to Judge Ishii; Objections to F&R due within 10 days from service. signed by Magistrate Judge Sandra M. Snyder on 6/29/2010. (Herman, H)
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Lopez et al v. Mortgage Electronic, Registration Systems As Nominee et al Doc. 7 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 MARTIN LOPEZ, an Individual; and JOSEPHINE LOPEZ, an Individual, 12 1:10-cv-00574-AWI-SMS FINDINGS AND RECOMMENDATION RE: DISMISSAL OF ACTION (Doc. 5) Plaintiffs, 13 vs. 14 MORTGAGE ELECTRONIC, REGISTRATION SYSTEMS AS NOMINEE; FIRST MORTGAGE CORPORATION, a corporation; WILSHIRE CREDIT CORPORATION, a corporation; US BANK, a corporation, 15 16 17 18 Defendants. / 19 20 On April 2, 2010, Plaintiffs, Martin Lopez and Josephine 21 Lopez, by and through legal counsel, Craig R. Triance, Esq., 22 filed the Complaint1 and instant action against Defendants, 23 Mortgage Electronic, Registration Systems As Nominee; First 24 Mortgage Corporation; Wilshire Credit Corporation; and, US Bank 25 26 27 28 1 The Complaint was file-stamped with a NOTICE OF NONCOMPLIANCE pursuant to Local Rule [5-]133(a) & (d)(3), as the document was filed in an improper format, paper instead of electronically, as required by the Eastern District of California. Unless excused by the Court, or by Local Rule, attorneys shall file all documents electronically as of January 3, 2005, in all actions pending before the court. Counsel are responsible for knowing the rules governing electronic filing in the Eastern District. 1 Dockets.Justia.com 1 (Doc. 1). 2 Civil New Case Documents, setting a Mandatory Scheduling 3 Conference on June 23, 2010 at 9:15 a.m. before Judge Snyder 4 (Doc. 5). 5 or otherwise contact or communicate with the Court, nor have 6 defendants been served, and, therefore, a Joint Scheduling Report 7 cannot be prepared as required for scheduling the case. 8 9 10 11 Summonses were issued (Docs. 2-4 & 6), as well as On June 23, 2010, Plaintiffs’ counsel did not appear The following is the entire court docket and sum total of the six (6) entries depicting the short history of this case: Date Filed # 04/02/2010 1 COMPLAINT against Mortgage Electronic, Registration Systems As Nominee, Wilshire Credit Corporation, US Bank by Martin Lopez, Josephine Lopez. ***FILED NONCOMPLIANCE; PURSUANT TO L.R. 5-133(a)&(d)(3)*** (Attachments: #1 Civil Cover Sheet)(Scrivner, E) (Entered: 04/06/2010) 04/06/2010 2 SUMMONS ISSUED as to *Mortgage Electronic, Registration Systems As Nominee* with answer to complaint due within *21* days. Attorney *Craig Ronald Triance* *Law Offices Of Craig Triance* *515 Cabrillo Park Drive, Suite 301* *Santa Ana, CA 92701*. (Scrivner, E) (Entered: 04/06/2010) 04/06/2010 3 SUMMONS ISSUED as to *US Bank* with answer to complaint due within *21* days. Attorney *Craig Ronald Triance* *Law Offices Of Craig Triance* *515 Cabrillo Park Drive, Suite 301* *Santa Ana, CA 92701*. (Scrivner, E) (Entered: 04/06/2010) 04/06/2010 4 SUMMONS ISSUED as to *Wilshire Credit Corporation* with answer to complaint due within *21* days. Attorney *Craig Ronald Triance* *Law Offices Of Craig Triance* *515 Cabrillo Park Drive, Suite 301* *Santa Ana, CA 92701*. (Scrivner, E) (Entered: 04/06/2010) 04/06/2010 5 CIVIL NEW CASE DOCUMENTS ISSUED; Initial Scheduling Conference set for 6/23/2010 at 09:15 AM in Courtroom 7 (SMS) before Magistrate Judge Sandra M. Snyder. (Attachments: # 1 Consent to Magistrate Judge, # 2 VDRP Form) (Scrivner, E) (Entered: 04/06/2010) 04/08/2010 6 SUMMONS ISSUED as to *First Mortgage Corporation* with answer to complaint due within *21* days. Attorney *Craig Ronald Triance* *Law Offices Of Craig Triance* *515 Cabrillo Park Drive, Suite 301* *Santa Ana, CA 92701*. (Hellings, J) (Entered: 04/08/2010) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Docket Text 26 27 // 28 / 2 1 2 HISTORY 1. Interestingly, on or about August 19, 2009, these same 3 Plaintiffs, Martin Lopez and Josephine Lopez, by and through 4 the same legal counsel, Craig R. Triance, Esq., initially filed 5 the same or similar Complaint against the same or similar 6 Defendants, Mortgage Electronic Registration Systems as 7 Nominee; First Mortgage Corporation; Wilshire Credit 8 Corporation; Cal-Western Reconveyance Corporation; and, Does 9 1-10, bearing case number 1:09-cv-01485-LJO-DLB (Doc. 2), and a 10 Mandatory Scheduling Conference was set for December 1, 2009 at 11 9:30 a.m. before Judge Beck (Doc. 6). 12 On December 1, 2009, Plaintiffs’ counsel, Craig R. Triance, 13 Esq., failed to appear for the mandatory scheduling conference, 14 failed to file a scheduling conference statement, and failed to 15 file proofs of service of the summons and complaint (Doc. 11). 16 As a result, on December 2, 2009, the Court issued an order to 17 show cause (OSC) why the action should not be dismissed, and 18 set a hearing for December 31, 2009 (Doc. 12). 19 On December 31, 2009, Plaintiffs’ counsel did not appear at 20 the OSC hearing or otherwise contact or communicate with the 21 Court (Doc. 16). 22 Recommendations that the action be dismissed for Plaintiffs’ 23 failure to follow the Court’s order and failure to prosecute 24 this action (Doc. 17). 25 adopted the Findings and Recommendations in full, and ordered 26 that the action be dismissed with prejudice against all 27 defendants (Doc. 18). 28 case was closed. As a result, the Court issued Findings and On January 19, 2010, the District Court Judgment was entered (Doc. 19), and the 3 1 In short, Plaintiffs, by and through legal counsel, Craig 2 R. Triance, Esq., re-filed their same or similar dismissed case 3 of 1:09-cv-01485–LJO-DLB under 1:10-cv-00574-AWI-DLB, which 4 their counsel continues to fail to prosecute. 5 2. Interestingly, in Sunny Etukudo v. Portfolio Recovery 6 Associates, 1:09-cv-01472-LJO-SMS, Plaintiff’s counsel, Craig 7 R. Triance, Esq., similarly failed to appear for the Mandatory 8 Scheduling Conference on February 24, 2010 at 9:30 a.m. before 9 Judge Snyder, or otherwise contact or communicate with the 10 Court (Doc. 9). 11 issued an order to show cause (OSC) requiring Mr. Triance to 12 personally appear on March 19, 2010 at 9:30 a.m. before Judge 13 Snyder to show cause why the case should not be dismissed for 14 lack of prosecution (Doc. 10). 15 As a result, on March 3, 2010, the Court On March 17, 2010, two (2) days prior to the scheduled OSC 16 hearing, Plaintiff’s counsel filed an erroneously titled 17 Request for Dismissal pursuant to FRCP 41 (Doc. 11), for which 18 a Clerk’s Notice was issued requesting that he correctly 19 re-file the document as a Notice of Voluntary Dismissal (Doc. 20 12). 21 fourteen (14) minutes prior to, the scheduled OSC hearing at 22 9:30 a.m., Plaintiff’s counsel correctly filed a Notice of 23 Voluntary Dismissal (Doc. 13). 24 at 9:18 a.m., twelve (12) minutes prior to the scheduled OSC 25 hearing at 9:30 a.m., Judge O’Neill ordered this case dismissed 26 and closed (Doc. 14). 27 // 28 / On March 19, 2010, at 9:16 a.m., the same day as, and As a result, on March 19, 2010, 4 1 2 DISCUSSION Local Rule 110 provides that “[f]ailure of counsel or of a 3 party to comply with these Rules or with any order of the Court 4 may be grounds for imposition by the Court of any and all 5 sanctions ... within the inherent power of the Court.” 6 District courts have the inherent power to control their 7 dockets and “[i]n the exercise of that power they may impose 8 sanctions including, where appropriate, ... dismissal.” 9 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 10 court may dismiss an action, with prejudice, based on a party’s 11 failure to prosecute an action, failure to obey a court order, 12 or failure to comply with local rules. 13 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for 14 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 15 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply 16 with an order requiring amendment of complaint); Carey v. King, 17 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 18 comply with local rule requiring pro se plaintiffs to keep 19 court apprised of address); Malone v. U.S. Postal Service, 833 20 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 21 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 22 Cir. 1986) (dismissal for lack of prosecution and failure to 23 comply with local rules). 24 See, e.g. Ghazali v. In determining whether to dismiss an action for lack of 25 prosecution, failure to obey a court order, or failure to 26 comply with local rules, the court must consider several 27 factors: (1) the public’s interest in expeditious resolution of 28 the litigation; (2) the court’s need to manage its docket; (3) 5 1 the risk of prejudice to the defendants; (4) the public policy 2 favoring disposition of cases on their merits; and, (5) the 3 availability of less drastic alternatives. 4 at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 5 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 6 Thompson, 782 F.2d In the instant case, the Court finds that the public’s 7 interest in expeditiously resolving this litigation and the 8 Court’s interest in managing the docket weigh in favor of 9 dismissal. The third factor, risk of prejudice to defendants, 10 also weighs in favor of dismissal, since a presumption of 11 injury arises from the occurrence of unreasonable delay in 12 prosecuting an action. 13 522, 524 (9th Cir. 1976). 14 favoring disposition of cases on their merits -- is greatly 15 outweighed by the factors in favor of dismissal. 16 17 Anderson v. Air West, Inc., 542 F.2d The fourth factor -- public policy RECOMMENDATION Accordingly, the Court RECOMMENDS that this entire action 18 be DISMISSED, without prejudice against all defendants, for 19 Plaintiffs’ failure to follow the Court’s order(s) and rules 20 and failure to prosecute this action (once again). 21 The Court requires compliance with the Federal Rules of 22 Civil Procedure and the Local Rules of Practice for the Eastern 23 District of California. 24 administration of this case, and all cases, all counsel are 25 expected to familiarize themselves with the Federal Rules of 26 Civil Procedure and the Local Rules of Practice for the Eastern 27 District of California, and to keep abreast of any amendments 28 thereto. To aid the Court in the efficient The Court must insist upon compliance with these 6 1 Rules if it is to efficiently handle its ever increasing 2 caseload. 3 failure to follow the Rules as provided in both the 4 Fed.R.Civ.P. and the Local Rules. 5 Sanctions, including dismissal, could be imposed for These Findings and Recommendation are submitted to the 6 Honorable Anthony W. Ishii, United States District Judge, 7 pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 8 304 of the Local Rules of Practice for the United States 9 District Court, Eastern District of California. Within ten 10 (10) days from the date of service of these Findings and 11 Recommendation, Plaintiffs may file with the court written 12 objections to such proposed Findings and Recommendation. 13 a document should be captioned "Objections to Magistrate 14 Judge's Findings and Recommendation.” 15 review the Magistrate Judge's ruling pursuant to 28 U.S.C. 16 § 636(b)(1). 17 objections within the specified time may waive the right to 18 appeal the District Court’s order. 19 1153 (9th Cir. 1991). Such The Court will then Plaintiffs are advised that failure to file Martinez v. Ylst, 951 F.2d 20 21 22 IT IS SO ORDERED. 23 Dated: icido3 June 29, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 7
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