1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK W. HOGGAN, No. 2:21-cv–01862–DJC–CKD (PS) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE 13 v. 14 SPECIALIZED LOAN SERVICING, LLC, et al., 15 Defendants. 16 17 On August 25, 2021, Plaintiff Patrick W. Hoggan (“Plaintiff”) filed a complaint in 18 Sacramento County Superior Court alleging claims for: (1) violation of the Truth and Lending 19 Act; (2) violations of the Rosenthal and Federal Fair Debt Collection Practices Act; (3) 20 promissory estoppel; (4) wrongful foreclosure; (5) negligent misrepresentation; (6) unfair 21 competition in violation of California Business & Professions Code §§ 17200-17210; and (7) 22 violation of California Civil Code § 2924.17. (ECF No. 1-1.) On October 8, 2021, Defendant 23 Specialized Loan Servicing, LLC (“Defendant”) removed the action to this Court. (ECF No. 1.) 24 On September 15, 2022, the District Judge granted in part and denied in part Defendant’s motion 25 to dismiss and granted Plaintiff thirty (30) days to file an amended complaint. (ECF No. 22.) 26 Plaintiff did not elect to file an amended complaint. Defendant filed its answer on November 3, 27 2022. (ECF No. 24.) 28 /// 1 On January 8, 2024, the District Judge issued an order to show cause due to the Parties’ 2 failure to meet deadlines pursuant to the Court’s Initial Pretrial Scheduling Order. (ECF Nos. 2, 3 26.) Plaintiff was ordered to show cause within seven (7) days why this action should not be 4 dismissed pursuant to Local Rule 110 for failure to prosecute. (ECF No. 26.) On January 31, 5 2024, the District Judge discharged the order to show cause due to Plaintiff declaring he was 6 seeking new counsel as a result of attorney Tim McFarlin’s disbarment. (ECF No. 28.) Plaintiff 7 was granted thirty (30) days to obtain new counsel. (Id.) Upon expiration of the deadline and 8 having received no notice from Plaintiff or Plaintiff’s new counsel, the District Judge referred this 9 action to the undersigned for all further proceedings pursuant to Local Rule 302(c)(21) on March 10 18, 2024. (ECF No. 29.) 11 On May 6, 2024, the undersigned issued an order to show cause why this action should 12 not be dismissed with prejudice under Rule 41(b) for failure to prosecute this case. (ECF No. 31.) 13 Plaintiff was given an additional fourteen (14) days to show cause and was warned that failure to 14 comply “will result in a recommendation that this action be dismissed with prejudice pursuant to 15 Federal Rule of Civil Procedure 41(b)”. (Id. at 2.) More than fourteen (14) days have passed 16 without a response from Plaintiff. Accordingly, the undersigned recommends dismissing this 17 case with prejudice under Rule 41(b). 18 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 19 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 20 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 21 local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may 22 act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. 23 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte dismissals under Rule 24 41(b)); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to follow a 25 district court’s local rules is a proper ground for dismissal.”); Ferdik v. Bonzelet, 963 F.2d 1258, 26 1260 (9th Cir. 1992), as amended (May 22, 1992) (“Pursuant to Federal Rule of Civil Procedure 27 41(b), the district court may dismiss an action for failure to comply with any order of the court.”); 28 Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) 1 (stating that district courts have inherent power to control their dockets and may impose sanctions 2 including dismissal or default). This Court’s Local Rules are in accord. See E.D. Cal. Local Rule 3 110 (“Failure of counsel or of a party to comply with these Rules or with any order of the Court 4 may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule 5 or within the inherent power of the Court.”); E.D. Cal. Local Rule 183(a) (providing that a pro se 6 party’s failure to comply with the Federal Rules of Civil Procedure, the court’s Local Rules, and 7 other applicable law may support, among other things, dismissal of that party’s action). 8 A court must weigh five factors in determining whether to dismiss a case for failure to 9 prosecute, failure to comply with a court order, or failure to comply with a District Court’s local 10 rules. See Ferdik, 963 F.2d at 1260. These are: 11 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 12 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 13 (5) the availability of less drastic alternatives. 14 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 15 Here, the first two factors weigh in favor of dismissal, because this case was delayed by 16 Plaintiff’s failure to take the steps necessary to move this case forward. The third factor also 17 favors dismissal because there is a rebuttable presumption of prejudice to Defendants due to 18 Plaintiff’s delay. In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994) (When considering prejudice to 19 the defendant, the failure to prosecute diligently is sufficient by itself to justify a dismissal, even 20 in the absence of a showing of actual prejudice to the defendant from the failure.... The law 21 presumes injury from unreasonable delay.”). Plaintiff has failed to comply and respond to the 22 Court’s attempts to move this action forward and has not provided an excuse for the lack of 23 compliance at this stage in the proceedings. The fifth factor also favors dismissal because the 24 Court has already attempted less drastic alternatives. Specifically, after learning that Plaintiff was 25 seeking new counsel, the Court granted Plaintiff thirty (30) days to retain new counsel. After the 26 passage of this time, and no additional action from Plaintiff, the Court attempted lesser sanctions 27 and issued an order to show cause. However, Plaintiff has failed to respond, leaving the Court 28 with little alternative but to recommend dismissal. ] As to the fourth factor, the public policy favoring disposition of cases on their merits, that 2 | factor is outweighed by the other Ferdik factors.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK W. HOGGAN, No. 2:21-cv–01862–DJC–CKD (PS) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE 13 v. 14 SPECIALIZED LOAN SERVICING, LLC, et al., 15 Defendants. 16 17 On August 25, 2021, Plaintiff Patrick W. Hoggan (“Plaintiff”) filed a complaint in 18 Sacramento County Superior Court alleging claims for: (1) violation of the Truth and Lending 19 Act; (2) violations of the Rosenthal and Federal Fair Debt Collection Practices Act; (3) 20 promissory estoppel; (4) wrongful foreclosure; (5) negligent misrepresentation; (6) unfair 21 competition in violation of California Business & Professions Code §§ 17200-17210; and (7) 22 violation of California Civil Code § 2924.17. (ECF No. 1-1.) On October 8, 2021, Defendant 23 Specialized Loan Servicing, LLC (“Defendant”) removed the action to this Court. (ECF No. 1.) 24 On September 15, 2022, the District Judge granted in part and denied in part Defendant’s motion 25 to dismiss and granted Plaintiff thirty (30) days to file an amended complaint. (ECF No. 22.) 26 Plaintiff did not elect to file an amended complaint. Defendant filed its answer on November 3, 27 2022. (ECF No. 24.) 28 /// 1 On January 8, 2024, the District Judge issued an order to show cause due to the Parties’ 2 failure to meet deadlines pursuant to the Court’s Initial Pretrial Scheduling Order. (ECF Nos. 2, 3 26.) Plaintiff was ordered to show cause within seven (7) days why this action should not be 4 dismissed pursuant to Local Rule 110 for failure to prosecute. (ECF No. 26.) On January 31, 5 2024, the District Judge discharged the order to show cause due to Plaintiff declaring he was 6 seeking new counsel as a result of attorney Tim McFarlin’s disbarment. (ECF No. 28.) Plaintiff 7 was granted thirty (30) days to obtain new counsel. (Id.) Upon expiration of the deadline and 8 having received no notice from Plaintiff or Plaintiff’s new counsel, the District Judge referred this 9 action to the undersigned for all further proceedings pursuant to Local Rule 302(c)(21) on March 10 18, 2024. (ECF No. 29.) 11 On May 6, 2024, the undersigned issued an order to show cause why this action should 12 not be dismissed with prejudice under Rule 41(b) for failure to prosecute this case. (ECF No. 31.) 13 Plaintiff was given an additional fourteen (14) days to show cause and was warned that failure to 14 comply “will result in a recommendation that this action be dismissed with prejudice pursuant to 15 Federal Rule of Civil Procedure 41(b)”. (Id. at 2.) More than fourteen (14) days have passed 16 without a response from Plaintiff. Accordingly, the undersigned recommends dismissing this 17 case with prejudice under Rule 41(b). 18 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 19 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 20 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 21 local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may 22 act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. 23 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte dismissals under Rule 24 41(b)); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to follow a 25 district court’s local rules is a proper ground for dismissal.”); Ferdik v. Bonzelet, 963 F.2d 1258, 26 1260 (9th Cir. 1992), as amended (May 22, 1992) (“Pursuant to Federal Rule of Civil Procedure 27 41(b), the district court may dismiss an action for failure to comply with any order of the court.”); 28 Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) 1 (stating that district courts have inherent power to control their dockets and may impose sanctions 2 including dismissal or default). This Court’s Local Rules are in accord. See E.D. Cal. Local Rule 3 110 (“Failure of counsel or of a party to comply with these Rules or with any order of the Court 4 may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule 5 or within the inherent power of the Court.”); E.D. Cal. Local Rule 183(a) (providing that a pro se 6 party’s failure to comply with the Federal Rules of Civil Procedure, the court’s Local Rules, and 7 other applicable law may support, among other things, dismissal of that party’s action). 8 A court must weigh five factors in determining whether to dismiss a case for failure to 9 prosecute, failure to comply with a court order, or failure to comply with a District Court’s local 10 rules. See Ferdik, 963 F.2d at 1260. These are: 11 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 12 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 13 (5) the availability of less drastic alternatives. 14 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 15 Here, the first two factors weigh in favor of dismissal, because this case was delayed by 16 Plaintiff’s failure to take the steps necessary to move this case forward. The third factor also 17 favors dismissal because there is a rebuttable presumption of prejudice to Defendants due to 18 Plaintiff’s delay. In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994) (When considering prejudice to 19 the defendant, the failure to prosecute diligently is sufficient by itself to justify a dismissal, even 20 in the absence of a showing of actual prejudice to the defendant from the failure.... The law 21 presumes injury from unreasonable delay.”). Plaintiff has failed to comply and respond to the 22 Court’s attempts to move this action forward and has not provided an excuse for the lack of 23 compliance at this stage in the proceedings. The fifth factor also favors dismissal because the 24 Court has already attempted less drastic alternatives. Specifically, after learning that Plaintiff was 25 seeking new counsel, the Court granted Plaintiff thirty (30) days to retain new counsel. After the 26 passage of this time, and no additional action from Plaintiff, the Court attempted lesser sanctions 27 and issued an order to show cause. However, Plaintiff has failed to respond, leaving the Court 28 with little alternative but to recommend dismissal. ] As to the fourth factor, the public policy favoring disposition of cases on their merits, that 2 | factor is outweighed by the other Ferdik factors. Indeed, it is Plaintiff's own failure to prosecute 3 || the case and comply with the rules that precludes a resolution on the merits. Therefore, after 4 | carefully evaluating the Ferdik factors, the Court concludes that dismissal is appropriate. 5 Accordingly, IT IS HEREBY RECOMMENDED that: 6 1. Plaintiff's claims be DISMISSED with prejudice pursuant to Federal Rule of Civil 7 Procedure 41(b); and 8 2. The Clerk of Court be directed to close this case. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within fourteen (14) 11 || days after being served with these findings and recommendations, any party may file written 12 || objections with the court and serve a copy on all parties. Such a document should be captioned 13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 15 || objections. The parties are advised that failure to file objections within the specified time may 16 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 17 | 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 18 | Dated: June 10, 2024 / hice ANKE) flo ” CAROLYNK.DELANEY 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 || 4, hogg1862.21 24 25 26 27 28