(PS) Weilert v. Nationstar Mortgage LLC ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 OTTO W. WEILERT, No. 2:19-cv-02286-MCE-CKD PS 12 Plaintiff, ORDER AND 13 v. FINDINGS AND RECOMMENDATIONS 14 NATIONSTAR MORTGAGE LLC et al., 15 Defendant. 16 17 Defendants removed this matter from state court and filed a motion to dismiss in 18 November 2019. (ECF Nos. 1, 7.) The court, on its own motion, postponed the hearing on 19 defendants’ motion to dismiss in order to ensure plaintiff had been served with the pertinent court 20 filings. (ECF No. 11.) The new hearing date was set for January 22, 2020, and the court ordered 21 plaintiff to respond to defendants’ motion 14 days prior to the hearing. (Id.) Plaintiff failed to 22 respond to defendants’ motion, prompting the court, on January 16, 2020, to vacate the hearing 23 date and issue an order for plaintiff to show cause why sanctions should not be entered against 24 him. (ECF No. 14.) Plaintiff was given 14 days to respond to the order to show cause and was 25 specifically instructed to demonstrate why the present action should not be dismissed. (Id.) 26 Plaintiff has not responded to the court’s order to show cause. 27 Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply 28 with these Rules or with any order of the Court may be grounds for imposition by the Court of 1 any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” 2 Moreover, Eastern District Local Rule 183(a) provides, in part: 3 Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these 4 Rules, and all other applicable law. All obligations placed on “counsel” by these Rules apply to individuals appearing in propria 5 persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these 6 Rules. 7 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 8 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 9 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 10 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 11 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 12 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 13 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 14 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 15 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 16 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 17 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 18 for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 19 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 20 any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 21 1986) (per curiam) (stating that district courts have inherent power to control their dockets and 22 may impose sanctions including dismissal or default). 23 A court must weigh five factors in determining whether to dismiss a case for failure to 24 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 25 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: 26 (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 27 the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 28 1 2 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 3 Here, the first two factors weigh in favor of dismissal, because this matter has already 4 been delayed by plaintiff’s failure to take the steps necessary to move this case forward. The 5 third factor also slightly favors dismissal, because, at a minimum, defendants have been deprived 6 of an opportunity to be promptly notified of the lawsuit and prepare a defense. With the passage 7 of time, witnesses’ memories fade and evidence becomes stale. 8 Furthermore, the fifth factor, availability of less drastic alternatives, favors dismissal, 9 because the court has already attempted less drastic remedies. The court, cognizant of plaintiff’s 10 pro se status, clearly cautioned plaintiff regarding the potential consequences of any continued 11 failure to comply with the court’s orders. The court ordered plaintiff to respond to defendants’ 12 motion and to respond to the court’s own order (ECF Nos. 11, 14), however, even after these 13 orders, plaintiff has failed to respond and failed to prosecute his case. 14 Finally, as to the fourth factor, the public policy favoring disposition of cases on their 15 merits, that factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure to 16 prosecute the case and comply with court orders that precludes a resolution on the merits. 17 Therefore, after carefully evaluating the Ferdik factors, the court concludes that dismissal 18 is appropriate. 19 ORDER AND FINDINGS AND RECOMMENDATIONS 20 IT IS HEREBY ORDERED that the clerk or court shall serve an additional copy of this 21 order to: Otto Weilert 6166 Pleasant Valley Rd # 117, El Dorado, CA 95623 22 Additionally, IT IS HEREBY RECOMMENDED that: 23 1. The action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 24 41(b). 25 2. The Clerk of Court be directed to close this case. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 28 after being served with these findings and recommendations, any party may file written 1 | objections with the court and serve a copy on all parties. Such a document should be captioned 2 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 3 | within the specified time may waive the right to appeal the District Court’s order. Martinez v. 4 Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 | Dated: February 27, 2020 f° Lf i, / CAN fu fl. ay 6 CAROLYN K. DELANEY 7 UNITED STATES MAGISTRATE JUDGE 8 9 | 16.2286.weil 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28