Kard v. GMAC Mortage, LLC

[8] 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA [11] 12 NICHOLE KARD, Case No.: 3:23-cv-1780-W-DEB 13 Plaintiff, ORDER DISMISSING CASE 14 v. WITHOUT PREJUDICE FOR FAILURE TO OPPOSE MOTIONS 15 GMAC MORTGAGE, LLC; REAL TIME TO DISMISS, FAILURE TO RESOLUTIONS; RRA CP 16 COMPLY WITH COURT ORDER, OPPORTUNITY TRUST 2; ZBS LAW AND FAILURE TO PROSECUTE 17 LLP; DOES 1-100, 18 Defendants. [Doc. 21] [19] 20 On August 6, 2024, the Court granted Attorney Andrews’s motion to withdraw as 21 counsel of record for Plaintiff, ordered Attorney Andrews to serve that Order on Plaintiff, 22 ordered Attorney Andrews to file a notice of contact information for Plaintiff for service 23 of process, and ordered Plaintiff to file, on or before September 3, 2024, her notice of 24 intent to proceed pro se or the status of her intention to retain new counsel. (Doc. 19.) 25 On August 13, 2024, Attorney Andrews complied with that Order and filed a Notice of 26 Plaintiff’s Updated Mailing Addresses and Email Addresses for Service of Process. 27 (Doc. 20.) Plaintiff failed to file timely any document in response to the Court’s 28 August 6 Order, and Plaintiff has not sought leave of Court for additional time to comply 1 with the August 6 Order or otherwise advise the Court about her intentions to prosecute 2 this case. 3 The motion to dismiss Plaintiff’s complaint in its entirety under Federal Rule of 4 Civil Procedure 12(b)(6) was originally filed on July 10, 2024, with a hearing date of 5 August 26, 2024. (Doc. 16.) The Court continued that hearing date to October 7, 2024, 6 as part of the order to give Plaintiff time to secure new counsel. (Doc. 19.) After that 7 hearing continuance, Plaintiff’s opposition to the Rule 12(b)(6) motion was due on or 8 before September 23, 2024. CivLR 7.1(e)(2). Plaintiff failed to oppose the Rule 12(b)(6) 9 motion. Defendant RTR advises the Court that as of October 1, 2024, Plaintiff has made 10 no contact with counsel for RTR. (Doc. 21.) As of the date of this Order, Plaintiff made 11 no filing in opposition to the Rule 12(b)(6) motion and no opposition to Defendant RTR’s 12 request for dismissal for failure to prosecute. 13 Federal Rule of Civil Procedure 41(b) authorizes dismissal of an action where the 14 plaintiff fails to prosecute or comply with the federal rules or court orders. Before 15 dismissing a case for failure to prosecute, a court must weigh five factors: “(1) the 16 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 17 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 18 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” 19 Henderson v. Duncan, 779 F. 2d 1421, 1423 (9th Cir. 1986). Dismissal for failure to 20 prosecute, however, is a “harsh penalty and is to be imposed only in extreme 21 circumstances.” Id. 22 Here, Defendant makes no analysis of the legal standard in its request for dismissal 23 for failure to prosecute pursuant to Rule 41(b). However, “dismissal under Rule 41(b) is 24 appropriate not only for a failure to prosecute but also, as here, for a failure ‘to comply 25 with . . . a court order.’” Smith v. Limerick, No. 23-354, No. 23-35476, 2024 WL 26 4211479, 2024 U.S. App. LEXIS 23558 (9th Cir. Sept 17, 2024) (citing Fed. R. Civ. P. 27 41(b); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (as amended)). [28] 1 First, the Court finds that the public’s interest in expeditious litigation is a neutral 2 factor here. The public has no interest in this case being prolonged in light of Plaintiff’s 3 failure to contact the Court, her own counsel, or opposing counsel regarding her intention 4 to prosecute this case or lack thereof. Neither would the public’s interest be harmed if 5 the case required additional time for resolution if Plaintiff intended to prosecute the case. 6 Plaintiff’s failure to comply with the Court’s order to state her intentions weighs slightly 7 in favor of a more expeditious resolution of the case to avoid delay by a nonresponsive 8 party. No other facts about the public’s interest are before the Court to weigh in favor or 9 against dismissal. 10 Second, the Court’s need to manage its docket favors dismissal. Plaintiff’s case 11 here has languished since its removal to this Court because the only filings on Plaintiff’s 12 behalf have been those of Plaintiff’s former counsel (1) attempting to notify the Court of 13 the extended time that has elapsed since he originally sought to withdraw as counsel, 14 even before the state court (where it also appeared that Plaintiff may not have intended to 15 further prosecute her case), and (2) opposing Defendants’ efforts to dismiss the case on 16 the merits while Plaintiff’s counsel simultaneously pursued withdrawal. 17 Third, the risk to Defendants weighs in favor of dismissal. Defendant RTR moved 18 for dismissal under Rule 12(b)(6) and now requests dismissal for failure to prosecute. 19 See Hernandez v. City of El Monte, 138 F.3d 393 , 400–01 (9th Cir. 1998) (agreeing with 20 defendants, without respect to any demonstration of actual prejudice, that “a presumption 21 of prejudice arises from the plaintiff’s failure to prosecute”). 22 Fourth, the public policy of resolving disputes on the merits weighs against 23 dismissal, but this factor also requires that Plaintiff present facts, law, or argument in 24 support of her case to allow review and resolution on the merits. Plaintiff has shown no 25 intention to do so. 26 Finally, the Court finds dismissal without prejudice is the least drastic option 27 available that will adequately address the five factors and Plaintiff’s failures in this case. 28 “Unless otherwise specified ... a [Federal Rule of Civil Procedure 41(b)] dismissal 1 || operates as an adjudication upon the merits.” Owens v. Kaiser Found. Health Plan, Inc., 2 F.3d 708, 714 (9th Cir. 2001) (internal quotation marks omitted). Plaintiff may still 3 || be pro se, even though she was ordered to inform the Court about her representation and 4 || failed to do so. Given the leniency that should be afforded pro se plaintiffs, dismissal 5 || with prejudice here is too drastic an alternative under the five Rule 41(b) factors. 6 || Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (‘we understand the 7 || Ferdik- Yourish rule to require a threatened Rule 12(b)(6) dismissal to ferment into a Rule 8 ||41(b) dismissal only upon a plaintiffs inaction’); see also Yourish v, California 9 || Amplifier, 191 F.3d 983, 986 (9th Cir. 1999); Ferdik, 963 F.2d at 1261 ; Henderson, 779 10 || F. 2d at 1423. Moreover, Defendant RTR, who requests Rule 41(b) dismissal, does not 11 ||request dismissal with prejudice and does not provide any argument that would support 12 conclusion that no less drastic sanction is unavailable. The Court also finds that 13 || Plaintiff (1) has been effectively absent in this case since its original removal, (2) failed 14 comply with this Court’s Order, and (3) failed to oppose the pending Rule 12(b)(6) 15 motion to dismiss or to timely seek an extension of time. In summary, the five 16 || Rule 41(b) factors weigh in favor of dismissal. 17 Accordingly, the Court dismisses this case without prejudice for (1) lack of 18 || opposition to Rule 12(b) and Rule 41(b), (2) failure to comply with Court order, and (3) 19 || failure to prosecute. For these reasons, the Court GRANTS Defendant’s request to 20 || dismiss for failure to prosecute [Doc. 21], DENIES AS MOOT WITHOUT 21 PREJUDICE the pending Rule 12(b) motion [Doc. 16], and ORDERS that this case is 22 || DISMISSED WITHOUT PREJUDICE. 23 IT IS SO ORDERED. 24 || Dated: October 16, 2024 \ 25 [ihe Lor 26 Hen. 7 omas J. Whelan 7 United States District Judge