(PS) Pascual, et al. v. Select Portfolio Servicing, Inc., et al., No. 2:2015cv00907 - Document 12 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 7/7/2015 RECOMMENDING that Plaintiff's 2/3/2015 complaint be dismissed without prejudice. Referred to Judge Kimberly J. Mueller. Objections to F&R due within 14 days. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 REGINALD PASCUAL and ANGELICA PASCUAL, Plaintiffs, 13 16 FINDINGS AND RECOMMENDATIONS v. 14 15 No. 2:15-cv-0907 KJM DAD PS SELECT PORTFOLIO SERVICING, INC., and NATIONAL DEFAULT SERVICING CORPORATION, 17 Defendants. 18 This matter came before the court on June 5, 2015, for hearing of defendants’ motion to 19 20 dismiss. Attorney Bao Vu appeared telephonically for the defendants. Despite being served with 21 notice of the motion neither plaintiff filed a written opposition nor did they file a statement of 22 non-opposition to defendants’ motion to dismiss. Moreover, neither plaintiff appeared at the 23 hearing of the motion, nor did anyone appear on behalf of either plaintiff. Accordingly, on June 9, 2015, the undersigned issued an order to show cause in writing 24 25 within fourteen days as to why this action should not be dismissed for lack of prosecution. (Dkt. 26 No. 10.) Plaintiffs were cautioned that failure to file a written response to that order would result 27 in the undersigned recommending that this matter be dismissed. (Id.) Nonetheless, the time for 28 ///// 1 1 plaintiffs to respond has expired and neither plaintiff has responded to the court’s order in any 2 way. 3 4 ANALYSIS The factors to be weighed in determining whether to dismiss a case for lack of prosecution 5 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need 6 to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 7 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 8 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 9 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 10 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 11 at 1260. 12 Failure of a party to comply with the any order of the court “may be grounds for 13 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 14 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 15 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 16 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 17 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 18 Rules. Id. 19 Here, plaintiffs have failed to file a timely response to defendants’ motion to dismiss and 20 failed to appear at the hearing of the properly noticed motion, in violation of multiple provisions 21 of Local Rule 230. Moreover, the court issued an order to show cause that provided plaintiffs 22 with yet another opportunity to show good cause for their failure to respond to defendants’ 23 motion but plaintiffs failed to respond to that order in any way. The order to show cause 24 specifically warned plaintiffs that the failure to file a written response to that order would result in 25 a recommendation that this matter be dismissed. 26 Plaintiffs’ lack of prosecution of this case renders the imposition of monetary sanctions 27 futile. Moreover, the public interest in expeditious resolution of litigation, the court’s need to 28 manage its docket, and the risk of prejudice to the defendants all support the imposition of the 2 1 sanction of dismissal. Only the public policy favoring disposition on the merits counsels against 2 dismissal. However, plaintiffs’ failure to prosecute the action in any way makes disposition on 3 the merits an impossibility. The undersigned will therefore recommend that this action be 4 dismissed due to plaintiffs’ failure to prosecute as well as their failure to comply with the court’s 5 orders. See FED. R. CIV. P. 41(b). 6 7 Accordingly, IT IS HEREBY RECOMMENDED that plaintiffs’ February 3, 2015 complaint (Dkt. No. 1-3) be dismissed without prejudice. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 13 shall be served and filed within seven days after service of the objections. The parties are advised 14 that failure to file objections within the specified time may waive the right to appeal the District 15 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 Dated: July 7, 2015 17 18 19 20 DAD:6 Ddad1\orders.pro se\pascual0907.dlop.f&rs.docx 21 22 23 24 25 26 27 28 3

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