(PS)Romero v. Monterey Financial Services, LLC ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIE PAMELA ROMERO and No. 2:21-cv-2236 TLN DB PS MARLITO ROMERO, 12 Plaintiffs, 13 ORDER AND v. FINDINGS AND RECOMMENDATIONS 14 MONTEREY FINANCIAL SERVICES, 15 LLC, 16 Defendant. 17 18 19 Plaintiffs Marie Pamela Romero and Marlito Romero are proceeding in this action pro se. 20 This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 21 U.S.C. § 636(b)(1). On December 10, 2021, defendant noticed a motion to dismiss plaintiffs’ 22 complaint for hearing before the undersigned. (ECF No. 24.) Pursuant to Local Rule 230(c) 23 plaintiffs were to file an opposition or a statement of non-opposition to defendant’s motion “not 24 less than fourteen (14) days preceding the noticed . . . hearing date.” Plaintiffs, however, failed to 25 file a timely opposition or statement of non-opposition. 26 Accordingly, on January 11, 2022, the court issued an order to show cause, ordering 27 plaintiffs to show cause in writing within fourteen days as to why this action should not be 28 dismissed for lack of prosecution, as well as ordering plaintiffs to file a statement of opposition or 1 non-opposition to defendant’s motion on or before February 4, 2021. (ECF No. 6.) Plaintiffs 2 were warned that the failure to timely comply with that order could result in a recommendation 3 that this case be dismissed. (Id. at 2.) Nonetheless, the time provided plaintiffs has expired and 4 plaintiffs have not responded to the January 11, 2022 order. 5 ANALYSIS 6 The factors to be weighed in determining whether to dismiss a case for lack of prosecution 7 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need 8 to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 9 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 10 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 11 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 12 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 13 at 1260. 14 Failure of a party to comply with the any order of the court “may be grounds for 15 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 16 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 17 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 18 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 19 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 20 Rules. Id. 21 Here, plaintiffs have failed to respond to the January 11, 2022 order and have failed to file 22 a statement of opposition or non-opposition to defendant’s motion to dismiss. Plaintiffs were 23 warned that the failure to file a written response to that order could result in a recommendation 24 that this matter be dismissed. In this regard, plaintiffs’ lack of prosecution of this case renders the 25 imposition of monetary sanctions futile. Moreover, the public interest in expeditious resolution of 26 litigation, the court’s need to manage its docket, and the risk of prejudice to the defendant all 27 support the imposition of the sanction of dismissal. Only the public policy favoring disposition 28 on the merits counsels against dismissal. However, plaintiffs’ failure to prosecute the action in 1 || any way makes disposition on the merits an impossibility. The undersigned will therefore 2 || recommend that this action be dismissed due to plaintiffs’ failure to prosecute as well as 3 || plaintiffs’ failure to comply with the court’s orders. See Fed. R. Civ. P. 41(b). 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Defendant’s December 10, 2021 motion to dismiss (ECF No. 3), re-noticed on 6 || December 10, 2021, (ECF NO. 5), is denied without prejudice to renewal as having been rendered 7 || moot; and 8 2. The February 18, 2022 hearing of defendant’s motion is vacated. 9 Also, IT IS HEREBY RECOMMENDED that: 10 1. Plaintiffs’ October 28, 2021 complaint (ECF No. 1) be dismissed without prejudice; 11 | and 12 2. This action be closed. 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-eight 15 || days after being served with these findings and recommendations, any party may file written 16 || objections with the court and serve a copy on all parties. Such a document should be captioned 17 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 18 | shall be served and filed within fourteen days after service of the objections. The parties are 19 || advised that failure to file objections within the specified time may waive the right to appeal the 20 | District Court’s order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991). 21 | Dated: February 14, 2022 23 A ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 25 DLB:6 26 || DB/orders/orders.pro se/romero2236.dlop.f&rs 27 28