(PS) Weilert v. Nationstar Mortgage LLC ( 2019 )

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-958-JAM-KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS AND ORDER ON DEFENDANTS’ 13 v. MOTION TO DISMISS 14 QUALITY LOAN SERVICE CORP., (ECF No. 4.) NATIONSTAR MORTGAGE, LLC 15 ROBERT E. WEISS INC., and DOES 1 THROUGH 15, 16 Defendants. 17 18 On April 2, 2019, plaintiff filed a complaint in California state court alleging twelve 19 claims against defendants all related to his mortgage and foreclosure proceedings; defendants 20 removed to this Court on May 24.1 (ECF No. 1.) On June 21, defendants filed the instant motion 21 to dismiss, and set the hearing for July 25. (ECF No. 4.) Due to the court’s unavailability, the 22 hearing was reset to August 1 via minute order. (ECF No. 5.) A copy of this minute order was 23 mailed to plaintiff, but was returned as undeliverable. (See Docket Entry for July 17, 2019.) 24 Plaintiff did not file a response to defendants’ motion to dismiss. (See Id.) Out of an abundance 25 of caution, the court kept the August 1 hearing on the calendar; but plaintiff did not appear at the 26 hearing. Thus, the court RECOMMENDS dismissal for failure to prosecute. 27 1 Plaintiff represents herself in this action without the assistance of counsel; thus, this case 28 proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 1 Analysis 2 Eastern District Local Rule 183(a) provides, in part: 3 Any individual representing himself [] without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. 4 All obligations placed on “counsel” by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, 5 judgment by default, or any other sanction appropriate under these Rules. 6 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 7 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 8 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 9 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 10 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 11 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 12 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 13 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 14 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 15 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 16 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 17 for dismissal.”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 18 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 19 any order of the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th 20 Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets 21 and may impose sanctions including dismissal or default). 22 A court must weigh five factors in determining whether to dismiss a case for failure to 23 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 24 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: 25 (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 26 the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 27 28 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 1 Here, the first two factors weigh in favor of dismissal, because this case has already been 2 delayed by plaintiff’s failure to take the steps necessary to move this case forward. The third 3 factor also slightly favors dismissal, because, at a minimum, defendants have been deprived of an 4 opportunity to be promptly notified of the lawsuit and prepare their defense. With the passage of 5 time, witnesses’ memories fade and evidence becomes stale. 6 Furthermore, the fifth factor, availability of less drastic alternatives, favors dismissal, 7 because the court has already attempted less drastic alternatives. Specifically, the court, 8 cognizant of plaintiff’s pro se status, kept the hearing on the calendar in case plaintiff would have 9 appeared, but plaintiff did not show. The court did so despite plaintiff’s failure to respond to 10 defendants’ motion to dismiss. Further, the court’s mail was returned as undeliverable, and 11 plaintiff has not informed the court of any change of address. See L.R. 182(f) (imputing a duty 12 on parties to notify the court and parties of any change of address). According to plaintiff’s 13 complaint and defendant’s motion to dismiss, it appears that foreclosure proceedings have not 14 begun, giving the court no indication why plaintiff wouldn’t receive mail sent to him by the court. 15 Simply, plaintiff has been incommunicado since filing his complaint, leaving the court with little 16 alternative but to recommend dismissal. 17 Finally, as to the fourth factor, the public policy favoring disposition of cases on their 18 merits, that factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure to 19 prosecute the case and comply with the rules that precludes a resolution on the merits. 20 Therefore, after carefully evaluating the Ferdik factors, the court concludes that dismissal 21 is appropriate. 22 Accordingly, IT IS HEREBY RECOMMENDED that: 23 1. The action be dismissed pursuant to Federal Rule of Civil Procedure 41(b); and 24 2. The Clerk of Court be directed to close this case. 25 In light of those recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 26 discovery, and motion practice in this action are stayed pending resolution of the findings and 27 recommendations. With the exception of objections to the findings and recommendations and 28 any non-frivolous motions for emergency relief, the court will not entertain or respond to any 1 | motions and other filings until the findings and recommendations are resolved. 2 These findings and recommendations are submitted to the United States District Judge 3 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) 4 | days after being served with these findings and recommendations, any party may file written 5 | objections with the court and serve a copy on all parties. Such a document should be captioned 6 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 7 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 8 | objections. The parties are advised that failure to file objections within the specified time may 9 | waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 10 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 11 IT IS SO ORDERED AND RECOMMENDED. 12 | Dated: August 2, 2019 i Aectl Aharon 14 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 15 weil.958 16 17 18 19 20 21 22 23 24 25 26 27 28