Lee v. Bank of America, N.A.

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 HOWARD LEE, Case No. 21-cv-07231-JSC 8 Plaintiff, ORDER DISMISSING ACTION v. — 9 — 10 BANK OF AMERICA, N.A., et al., Defendants. — 11 — — 12 — 13 Plaintiff Howard Lee, who is representing himself, brings claims against Defendants Bank 14 of America, N.A. and Bank of America Corporation for negligence, fraud, and contract-related 15 breaches. On February 28, 2022, the Court granted Defendants’ motion to dismiss and ordered 16 Plaintiff to file an amended complaint by March 30, 2022. (Dkt. No. 26.) Plaintiff did not file an 17 amended complaint and did not otherwise respond to the Court’s Order. On April 11, 2022, the 18 Court ordered Plaintiff to show cause as to why this action should not be dismissed for failure to 19 prosecute. (Dkt. No. 27.) Plaintiff has not responded to the Court’s Order and the deadline to do 20 so has passed. 21 Pursuant to Federal Rule of Civil Procedure 41(b), the Court may dismiss an action for 22 failure to prosecute or to comply with a court order. See Hells Canyon Preservation Council v. 23 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that a court may sua sponte 24 dismiss an action pursuant to Rule 41(b)). “A Rule 41(b) dismissal must be supported by a 25 showing of unreasonable delay.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) 26 (internal citation and quotation marks omitted). In determining whether a Rule 41(b) dismissal is 27 appropriate, the court must weigh the following factors: “(1) the public’s interest in expeditious 1 defendants; (4) the public policy favoring disposition of cases on their merits and (5) the 2 availability of less drastic sanctions.” Id. (quoting Henderson v. Duncan, 779 F.2d 1421 , 1423 3 (9th Cir.1986)). Dismissal is appropriate “where at least four factors support dismissal . . . or 4 where at least three factors strongly support dismissal.” Hernandez v. City of El Monte, 138 F.3d 5 393, 399 (9th Cir. 1998) (internal citation and quotation marks omitted). 6 Here, four of the five Henderson factors weigh in favor of dismissal. “The first two 7 factors—the public interest in expeditious resolution of litigation and the Court’s need to manage 8 its docket—relate to the “efficient administration of judicial business for the benefit of all litigants 9 with cases pending.” Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275 , 1279 10 (9th Cir. 1980). By failing to comply with the Court’s orders and file an amended complaint or 11 response to the Order to Show Cause, Plaintiff has delayed adjudication of this action. Non12 compliance with procedural rules and the Court’s orders wastes “valuable time that [the Court] 13 could have devoted to other ... criminal and civil cases on its docket.” Ferdik v. Bonzelet, 963 14 F.2d 1258 , 1261 (9th Cir. 1992). 15 As for the third factor, while “the pendency of the lawsuit is not sufficiently prejudicial 16 itself to warrant dismissal,” the delay caused by Plaintiff’s failure to prosecute this action despite 17 the Court’s orders weighs in favor of dismissal. Yourish v. California Amplifier, 191 F.3d 983 , 18 991 (9th Cir. 1999). 19 The fourth factor is the availability of less drastic sanctions. The Court already cautioned 20 Plaintiff’s that failure to respond would result in dismissal of this action. (Dkt. No. 27.) Thus, the 21 Court has fulfilled its “obligation to warn the plaintiff that dismissal is imminent.” Oliva v. 22 Sullivan, 958 F.2d 272, 274 (9th Cir. 1992); see also Ferdick, 963 F.2d at 1262 (“A district court’s 23 warning to a party that failure to obey the court’s order will result in dismissal can satisfy the 24 ‘consideration of [less drastic sanctions] requirement.”). The fourth factor thus weighs in favor of 25 dismissal. 26 The last factor, which favors disposition on the merits, by definition weighs against 27 dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Public policy favors 1 In sum, four of the five relevant factors weigh strongly in favor of dismissing this action in 2 || its entirety. See Pagtalunan, 291 F.3d at 643 (affirming dismissal where three factors favored 3 dismissal, while two factors weighed against dismissal). The Court therefore DISMISSES this 4 action pursuant to Federal Rule of Civil Procedure 41. — 5 — 6 IT IS SO ORDERED. 7 Dated: May 5, 2022 8 ' ne — 9 — JACQUELINE SCOTT CORLEY 10 United States District Judge — 11 — — 12 — — 13 — © — 15 — — 16 — = 17 Z 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —