(PS) Toliver v. Clear Recon Corp.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VIVIAN J. TOLIVER, No. 2:24-cv-02139-KJM-SCR 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CLEAR RECON CORP., 15 Defendant. 16 17 Plaintiff is proceeding in this matter pro se, and this matter is referred to the undersigned 18 pursuant to Local Rule 302(c)(21) and 28 U.S.C. § 636. Plaintiff has failed to file a first amended 19 complaint (FAC) and failed to respond to the Court’s Order to Show Cause (OSC). The Court 20 now recommends that the action be dismissed for failure to prosecute and failure to comply with 21 court orders. 22 I. Background and Procedural History 23 On August 8, 2024, Plaintiff filed her complaint and paid the filing fee. ECF No. 1. 24 Plaintiff alleges that Defendant accessed her “personal identification” without her “full consent.” 25 Id. at ¶ 1. Plaintiff appears to complain that Defendant was not her true lender, and that 26 Defendant failed to “exhibit the note.” Id. at ¶¶ 8-11. 27 On February 25, 2025, Defendant filed a motion to dismiss pursuant to Federal Rule of 28 Civil Procedure 12(b)(6) which argued the complaint failed to state a claim. ECF No. 4. 1 Defendant states that it is a substituted foreclosure trustee that was hired to conduct a non-judicial 2 foreclosure on Plaintiff’s home on July 25, 2024, on which date the home was sold to a third- 3 party cash bidder. Id. at 3. Plaintiff failed to file an opposition to the motion, and the motion was 4 submitted on March 27, 2025. ECF No. 6. On April 29, 2025, the undersigned issued Findings 5 and Recommendations (F&R) recommending that the motion to dismiss be granted and Plaintiff 6 allowed leave to amend. ECF No. 7. 7 On July 8, 2025, Judge Mueller adopted the F&R and dismissed Plaintiff’s complaint. 8 ECF No. 9. The order provided that Plaintiff shall have 21 days to file a FAC. Id. at 2. Plaintiff 9 did not timely file a FAC, and this Court issued an OSC which directed Plaintiff to show cause 10 why the action should not be dismissed for failure to prosecute. ECF No. 10. The OSC cautioned 11 that failure to respond would lead to a recommendation that the action be dismissed. Plaintiff’s 12 response was due August 22, 2025, and no response was filed. 13 II. Analysis 14 Plaintiff did not timely file a FAC and has not responded to the Court’s order to show 15 cause (ECF No. 10). Plaintiff was warned that failure to respond would lead to a 16 recommendation that the action be dismissed. ECF No. 10 at 2. The Court has considered the 17 five factors set forth in Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), and concludes 18 that dismissal is appropriate. In considering whether to dismiss a claim for failure to prosecute, 19 the Court considers: 1) the public’s interest in expeditious resolution of litigation; 2) the court’s 20 need to manage its docket; 3) the risk of prejudice to defendants; 4) the availability of less drastic 21 alternatives; and 5) the public policy favoring disposition of cases on their merits. Id. at 1260-61. 22 1. Public’s interest in expeditious resolution of the litigation 23 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 24 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). This action was filed over a year 25 ago, in August 2024. Plaintiff’s only filing in the last twelve months was a very untimely 26 opposition (ECF No. 8) to the motion to dismiss. That last filing was four months ago. This 27 factor weighs in favor of dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 641 (9th Cir. 2002) 28 //// 1 (“Given Pagtalunan’s failure to pursue the case for almost four months, this factor weighs in 2 favor of dismissal.”). 3 2. Court’s need to manage its docket 4 In evaluating this factor, the trial court “is in the best position to determine whether the 5 delay in a particular case interferes with docket management.” Pagtalunan, 291 F.3d at 642. 6 This case has been on the Court’s docket for over a year. The Court has decided a dispositive 7 motion and issued an order to show cause. The Court’s need to manage its docket weighs in 8 favor of dismissal, particularly given the heavy caseload in this District. 9 3. Risk of prejudice to defendant 10 In evaluating this factor, the Court considers whether “plaintiff’s actions impaired 11 defendant’s ability to proceed to trial or threatened to interfere with the rightful decision of the 12 case.” Pagtalunan, 291 F.3d at 642. Limited delays and the pendency of a lawsuit are 13 insufficient to establish prejudice. Id. However, “[u]nnecessary delay inherently increases the 14 risk that witnesses’ memories will fade and evidence will become stale.” Id. at 643. This matter 15 cannot proceed without Plaintiff’s participation, and because Plaintiff has not filed a FAC, there 16 is no operative pleading upon which the action can proceed. This factor supports dismissal. 17 4. Availability of less drastic alternatives 18 The Court has considered the availability of less drastic alternatives. As detailed above, 19 the Court has previously issued an order to show cause and has cautioned Plaintiff that non- 20 compliance with the Court’s order would lead to a recommendation to dismiss the action. The 21 Court finds that lesser sanctions would be futile given Plaintiff’s lack of participation in the 22 litigation. The most severe approach would be to dismiss the action with prejudice, however the 23 Court concludes that the less drastic alternative of dismissal without prejudice is appropriate. 24 This factor weighs in favor of dismissal. 25 5. Public policy favoring disposition of cases on the merits 26 “Public policy favors disposition of cases on the merits.” Pagtalunan, 291 F.3d at 643. 27 This factor generally always weighs against dismissal, and some cases have stated it “strongly 28 counsels against dismissal.” Allen v. Bayer Corp. (In re Phenylpropanolamine Prods. Liab. 1 || Litig.), 460 F.3d 1217, 1228 (9th Cir. 2006). However, “this factor ‘lends little support’ to a party 2 || whose responsibility it is to move a case toward disposition on the merits but whose conduct 3 || impedes progress in that direction.” /d. The Court finds this factor weighs against dismissal. 4 Il. Conclusion 5 The Court recommends that dismissal is appropriate pursuant to Federal Rule of Civil 6 || Procedure 41(b) and Local Rule 110 for Plaintiff's failure to prosecute this action. 7 Accordingly, IT IS HEREBY RECOMMENDED that: 8 1. This action be dismissed without prejudice; and 9 2. The Clerk enter judgment and close this file. 10 These findings and recommendations will be submitted to the United States District Judge 11 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 12 || after being served with these findings and recommendations, either party may file written 13 | objections with the court. The document should be captioned “Objections to Magistrate Judge's 14 | Findings and Recommendations.” The parties are advised that failure to file objections within the 15 | specified time may result in waiver of the right to appeal the district court’s order. Martinez v. 16 | Yist, 951 F.2d 1153 (9th Cir. 1991). 17 | DATED: September 3, 2025 18 md 19 SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28