(PS) Jennings v. Washington Mutual Bank et al, No. 2:2010cv02126 - Document 16 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 4/29/11 RECOMMENDING that this action be dismissed; REFERRED to Judge Frank C. Damrell, Jr.; Objections due within 14 days of being served with these F&R's. (Carlos, K)
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(PS) Jennings v. Washington Mutual Bank et al Doc. 16 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ANNE JENNINGS, 10 11 12 No. CIV S-10-2126-FCD-CMK Plaintiff, vs. FINDINGS AND RECOMMENDATIONS WASHINGTON MUTUAL BANK, et al., 13 Defendants. 14 15 / Plaintiff, proceeding in this action in propria persona, bring this civil action 16 pursuant to the Real Estate Settlement Procedures Act, 12 U.S.C. § 2603, et seq., and the Truth 17 in Lending Act, 15 U.S.C. § 1601, et seq. On March 24, 2011, the court granted defendants’ 18 motion to dismiss, but provided plaintiff an opportunity file an amended complaint within 20 19 days. Plaintiff was warned that failure to file an amended complaint may result in dismissal of 20 this action for lack of prosecution and failure to comply with court rules and orders. See Local 21 Rule 110. To date, plaintiff has not complied. 22 The court must weigh five factors before imposing the harsh sanction of 23 dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 24 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 25 interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) 26 the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 1 Dockets.Justia.com 1 their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 2 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 3 appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. 4 See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is 5 appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 6 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to 7 comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 8 1260-61 (9th Cir. 1992). 9 Having considered these factors, and in light of plaintiff’s failure to file an 10 amended complaint as directed, the court finds that dismissal of this action is appropriate. 11 Based on the foregoing, the undersigned recommends that this action be 12 dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 13 orders. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court. Responses to objections shall be filed within 14 days after service of 18 objections. Failure to file objections within the specified time may waive the right to appeal. 19 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 23 DATED: April 29, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 24 25 26 2