Udo v. Bank of America, N.A. ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 ETOP UDO, ET AL., 6 Case No. 4:24-cv-01310-YGR Plaintiffs, 7 vs. ORDER DISMISSING CASE 8 WITHOUT PREJUDICE BANK OF AMERICA, N.A., ET AL., 9 Defendants. 10 11 On July 26, 2024, Magistrate Judge Lisa J. Cisneros issued an Order to Show Cause Why 12 Case Should Not Be Dismissed (hereinafter, the “OSC”). (Dkt. No. 20.) The OSC articulated two 13 bases on which Magistrate Judge Cisneros believed the instant case should be dismissed: (i) plaintiffs 14 did not timely serve defendants by June 3, 2024 in violation of Federal Rule of Civil Procedure 4(m); 15 and (ii) res judicata, now referred to as issue preclusion, bars the suit. 16 Plaintiffs were ordered to respond to these topics by no later than August 9, 2024. The 17 OSC explicitly stated that failure to timely respond would result in the case being “reassigned to a 18 United States district judge with a recommendation that the case be dismissed.” (Id. at 4.) This 19 matter was reassigned to the undersigned on July 29, 2024, several days after the OSC issued and 20 without plaintiffs having filed a response. (Dkt. No. 23.) Since reassignment, plaintiffs have taken 21 no action. Thus, the OSC remains outstanding. The Court turns to considering whether plaintiffs’ 22 failure to respond to the OSC warrants dismissal. 23 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action 24 for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th 25 Cir. 1992). “In determining whether to dismiss a claim for failure to prosecute or failure to comply 26 with a court order, the Court must weigh the following factors: (i) the public’s interest in 27 expeditious resolution of the litigation; (2) the court’s need to manage its docket; (3) the risk of 1 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 2 || public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 3 || 642 (9th Cir. 2002.) 4 The Court examines each factor in turn, as is required: One, “[t]he public’s interest in 5 expeditious resolution of litigation always favors dismissal.” Jd. at 642 (cleaned up). Two, “the 6 || Court must be able to manage its docket ‘without being subject to routine noncompliance of 7 litigants.’” Bush v. Brown Farms, No. 20-cv-03275-JD, 2021 WL 1087453, at *1 (N.D. Cal. Mar. 8 22, 2021) (quoting Pagtalunan, 291 F.3d at 642)). Thus, the second factor favors dismissal. Three, 9 || plaintiffs have “offered no explanation for [their] failure[s]” as they have not filed anything on the 10 || docket in the 20 days since the OSC was entered. Jd. This factor favors dismissal. Four, “the 11 [c]ourt’s issuance of the [OSC] satisfies the consideration of [the] less drastic sanctions 12 || requirement.” Jd. at *2. Five, while “the public policy favoring disposition of cases on their merits 13 [] might weigh against dismissal, on its own, the cumulative weight of the other factors overrides 14 it.” Id. Accordingly, the Court finds that the factors weigh in favor of dismissal. 3 15 For the foregoing reasons, the Court determines plaintiffs’ failure to comply with the OSC a 16 warrants dismissal under Rule 41(b). The case is therefore DISMISSED WITHOUT PREJUDICE. 3 17 The Clerk shall close the case. 18 IT Is SO ORDERED. 19 20 || Dated: August 15, 2024 Loree tg efllecee— YVONNE GORZALEZ’ROGERS NITED STATES DISTRICT COURT JUDGE 22 23 24 25 26 27 28