(PS) Nedashkovskiy v. First Franklin Financial Corp. et al, No. 2:2010cv01598 - Document 21 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/15/10 Recommending that this Action be dismissed with prejudice. Defendant's Request for attorney's fees be granted in the amount of $573.75, and Plaintiff be directed to pay this amount to defendants within 28 days of an order adotpting these Findings and Recommendations. These Findings and Recommendations are submitted to U.S. District Judge Frank C. Damrell, Jr. Within fourteen (14) days after being served with these Findings and Recommendation, any party may file written objections with the Court and serve a copy on all parties. (Mena-Sanchez, L)
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(PS) Nedashkovskiy v. First Franklin Financial Corp. et al Doc. 21 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 NEDEZHDA NEDASHKOVSKIY, 10 11 Plaintiff, No. CIV S-10-1598 FCD GGH PS vs. 12 FIRST FRANKLIN FINANCIAL CORP., et al., 13 FINDINGS & RECOMMENDATIONS Defendants. 14 / 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 June 23, 2010. In the order requiring joint status 18 report, filed June 24, 2010, plaintiff was 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 and an amended motion to strike on July 1, 21 2010. Defendants also filed an amended motion to expunge plaintiff’s notice of pendency of 22 action and for attorney’s fees and costs on July 27, 2010. Plaintiff did not respond to any of 23 these motions. By orders filed July 21 and September 2, 2010, the hearings on the motions were 24 vacated due to plaintiff’s failure to file oppositions. 25 26 Although the court liberally construes the pleadings of pro se litigants, they are required to adhere to the rules of court. As set forth in the district court’s order requiring status 1 Dockets.Justia.com 1 report, failure to obey local rules may not only result in dismissal of the action, but “no party will 2 be entitled to be heard in opposition to a motion at oral arguments if opposition has not been 3 timely filed by that party.” E. D. Cal. L. R. 230(c). More broadly, failure to comply with the 4 Local Rules or “any order of the court may be grounds for imposition . . . of any and all sanctions 5 authorized by statute or Rule or within the inherent power of the Court.” E. D. Cal. L. R. 110; 6 see also E. D. Cal. L. R. 183 (requiring compliance with the Local and Federal Rules by pro se 7 litigants). 8 “Failure to follow a district court’s local rules is a proper ground for dismissal.” 9 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The court should consider: (1) the public’s 10 interest in expeditious resolution of litigation, (2) the court’s need to manage its docket, (3) the 11 risk of prejudice to the defendants, (4) the public policy favoring disposition of cases on their 12 merits, and (5) the availability of less drastic sanctions. Similar considerations authorize 13 dismissal of an action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). Link v. Wabash 14 R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). 15 Moreover, failure to obey court orders is a separate and distinct ground for imposing the sanction 16 of dismissal. See Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 17 (setting forth same factors for consideration as Ghazali). 18 The court has considered the factors set forth in Ghazali. “[T]he key factors are 19 prejudice and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th 20 Cir.1990). Defendants are clearly prejudiced by the requirement of defending an abandoned 21 case, and this court is put in the untenable position of expending limited judicial resources to 22 decide such a case on the merits. The public’s interest in expeditious resolution of litigation, the 23 court’s need to manage its docket, and the unsuitability of a less drastic sanction, direct that this 24 case be dismissed. In sum, the court now has had much experience resolving pro se cases 25 brought for the purpose of delaying the inevitable foreclosure of one’s home, with the same result 26 on the merits, that the law does not provide a remedy for this unfortunate situation. 2 1 Accordingly, IT IS RECOMMENDED that: 2 1. This action be dismissed with prejudice pursuant to Federal Rule of Civil 3 Procedure 41(b). 4 2. Because the complaint fails to state a “real property” claim under Cal. Code 5 Civ. Proc. § 405.31, and plaintiff has failed to establish any “probable validity” to her claims, 6 defendants’ amended motion to expunge notice of pendency of action, filed July 27, 2010, (dkt. # 7 17), be granted. 8 9 3. Defendants’ request for attorney’s fees pursuant to Cal. Code Civ. Pro. § 405.38 (having to do with infringement of lis pendens) be granted in the amount of $573.75,1 and 10 plaintiff be directed to pay this amount to defendants within 28 days of an order adopting these 11 findings and recommendations. 12 These findings and recommendations are submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 14 fourteen (14) days after being served with these findings and recommendations, any party may 15 file written objections with the court and serve a copy on all parties. Such a document should be 16 captioned “Objections to Magistrate Judge”s Findings and Recommendations.” Any reply to the 17 objections shall be served and filed within fourteen (14) days after service of the objections. The 18 parties are advised that failure to file objections within the specified time may waive the right to 19 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 DATED: 09/15/2010 /s/ Gregory G. Hollows ___________________________ GREGORY G. HOLLOWS U. S. MAGISTRATE JUDGE 21 22 23 GGH:076/Nedashkovskiy1598.41.wpd 24 25 1 26 Defendants are not granted the full amount requested because no hearing was held and a reply was rendered unnecessary by plaintiff’s failure to file an opposition. 3
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