(PS) Sadoma v. Bank of America N.A. et al, No. 2:2010cv01781 - Document 14 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 9/23/2010. It is ORDERED that defendants' 7 Motion to Dismiss Hearing be VACATED; and Court is RECOMMENDING that this action be dismissed pursuant to Federal Rule 41 (b) of Civil Procedure. Within 14 days after being served with these F & Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)
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(PS) Sadoma v. Bank of America N.A. et al Doc. 14 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KONSTANTIN SADOMA, 11 12 13 14 15 16 Plaintiff, No. 2:10-cv-01781 MCE KJN PS vs. BANK OF AMERICA, N.A. et al., Defendants. ORDER and FINDINGS AND RECOMMENDATIONS / Plaintiff Konstantin Sadoma is an individual, proceeding without counsel. On 17 June 4, 2010, plaintiff filed a complaint in the Superior Court of the State of California for the 18 County of Yolo. (Dkt. No. 3 at 9.) Defendants Bank of America, N.A., ReconTrust Company, 19 N.A., Countrywide Home Loans, Inc. and Mortgage Electronic Registration Systems, Inc. 20 (collectively “defendants”) removed that action to this court. (Dkt. No. 1.) On July 16, 2010, 21 defendants moved to dismiss plaintiff’s complaint. (Dkt. No. 7.) Defendants noticed their 22 motion for hearing on September 2, 2010. (Id.) 23 Plaintiff filed neither an opposition nor a statement of non-opposition to 24 defendants’ motion. The court issued an order on August 23, 2010, reminding plaintiff that 25 Local Rule 230(c) provides that opposition to the granting of a motion, or a statement of non- 26 opposition thereto, must be served upon the moving party, and filed with this court, no later than 1 Dockets.Justia.com 1 fourteen days preceding the noticed hearing date or, in this instance, by August 19, 2010. (Dkt. 2 No. 10.) This court further instructed plaintiff as follows: 3 4 5 6 7 8 Local Rule 183, governing persons appearing in pro se, provides that failure to comply with the Federal Rules of Civil Procedure and Local Rules may be ground for dismissal, judgment by default, or other appropriate sanction. Local Rule 110 provides that failure to comply with the Local Rules “may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” See also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure to follow a district court’s local rules is a proper ground for dismissal.”). Pro se litigants are bound by the rules of procedure, even though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 9 10 11 (Dkt. No. 10 at 2.) The court continued the hearing on the defendants’ motion to dismiss to 12 September 30, 2010, and granted plaintiff an additional opportunity to file an opposition to the 13 motion, or a statement of non-opposition thereto. Further, the court warned plaintiff that his 14 failure to again file a timely opposition would be deemed a statement of non-opposition to the 15 pending motion, and may result in an adverse ruling, including but not limited to a 16 recommendation that this action be dismissed for lack of prosecution. (Dkt. No 13, citing Fed. 17 R. Civ. P. 41(b).) Plaintiff again failed to file an opposition, or any response whatsoever to 18 defendants’ motion or the court’s August 23, 2010 order. 19 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss 20 an action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 21 1260 (9th Cir. 1992); Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002) (affirming district 22 court’s dismissal of case for failure to prosecute when habeas petitioner failed to file a first 23 amended petition); see also Parrish v. Traquina, 2008 WL 906367 (E.D. Cal. March 31, 2008) 24 (recommending dismissal for failure to prosecute after plaintiff failed to file an opposition to 25 defendants’ motion for summary judgment); Williams v. Woodford, 2008 WL 73159 (E.D. Cal. 26 Jan. 4, 2008) (recommending dismissal for failure to prosecute after plaintiff failed to file an 2 1 opposition to defendants’ motion to dismiss for failure to exhaust administrative remedies); Loza 2 v. Knowles, 2007 WL 91445 (E.D. Cal. Jan. 9, 2007) (recommending dismissal for failure to 3 prosecute after plaintiff failed to file a pretrial statement). 4 A court must weigh five factors in determining whether to dismiss a case for 5 failure to prosecute, failure to comply with a court order and/or failure to comply with a district 6 court’s local rules. Specifically, the court must consider: 7 (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 alternatives. 8 9 10 Ferdik, 963 F.2d at 1261; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995); Pagtalunan, 291 F.3d 11 at 642-43. In this case, the five factors set forth in Ferdik weigh in favor of dismissal of this 12 action. 13 First, as in Ferdik, factors one and two strongly support dismissal of this action. 14 Plaintiff’s repeated failure to file a timely opposition, or any opposition whatsoever, to 15 defendants’ motion to dismiss or otherwise comply with court orders strongly suggests that 16 plaintiff has abandoned this action. See, e.g., Yourish v. California Amplifier, 191 F.3d 983, 990 17 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors 18 dismissal.”). In this regard, any further time spent by the court on this case, which plaintiff has 19 demonstrated no intention to pursue, will consume scarce judicial resources and take away from 20 other active cases. Ferdik, 963 F.2d at 1261 (district courts have inherent power to manage their 21 dockets without being subject to noncompliant litigants). 22 In addition, factor three regarding prejudice to defendants as a result of plaintiff’s 23 failure to timely oppose their motion to dismiss should be given some weight. Ferdik, 963 F.2d 24 at 1262. A motion to dismiss is an aid to simplifying the issues and dismissing improper claims 25 or parties before discovery ensues. Plaintiff’s failure to oppose defendants’ motion raises the real 26 possibility that defendants may be forced to unnecessarily engage in further litigation against a 3 1 complaint which plaintiff does not appear to value enough. Moreover, delay is nearly always 2 prejudicial. 3 Factor five also supports dismissal of this action. As noted above, the court has 4 attempted less drastic remedies than that of a recommendation for outright dismissal. In addition 5 to excusing plaintiff’s first failure to oppose, the court granted plaintiff additional time to file an 6 opposition and continued the hearing on defendants’ motion to dismiss. Moreover, the court has 7 advised plaintiff of the requirement of opposing a motion to dismiss and informed him of the 8 requirements of the Local Rules, and has clearly warned plaintiff that failure to comply with 9 court orders could result in a recommendation of dismissal. Warning a plaintiff that failure to 10 take steps towards resolution of his action on the merits will result in dismissal satisfies the 11 requirement that the court consider the alternatives. See Buss v. Western Airlines, Inc., 738 F.2d 12 1053, 1054 (9th Cir. 1984), cert. denied, 469 U.S. 1192 (1985); Titus v. Mercedes Benz of North 13 America, 695 F.2d 746, 749 n.6 (3d Cir. 1982). At this juncture, the court finds no suitable 14 alternative to a recommendation for dismissal of this action. 15 Finally, the court recognizes the importance of giving due weight to factor four. 16 Public policy strongly favors disposition of cases on the merits. However, for the reasons set 17 forth above, factors one, two, three, and five strongly support a recommendation for dismissal of 18 this action, and factor four does not sufficiently mitigate against it. Dismissal is proper when at 19 least four factors support dismissal or where at least three factors “strongly” support dismissal. 20 See Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). Under the circumstances 21 of this case, the other factors outweigh the general public policy favoring disposition of actions 22 on their merits. Ferdik, 963 F.2d at 1263. 23 24 25 26 Accordingly, IT IS HEREBY ORDERED that the hearing on defendants’ motion to dismiss set for September 30, 2010, is vacated; and IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 4 1 These findings and recommendations are submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 3 days after being served with these findings and recommendations, any party may file written 4 objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 5 document should be captioned “Objections to Magistrate Judge’s Findings and 6 Recommendations.” Any response to the objections shall be filed with the court and served on 7 all parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file 8 objections within the specified time may waive the right to appeal the District Court’s order. 9 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 10 (9th Cir. 1991). 11 DATED: September 23, 2010 12 13 14 15 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 5