Tulcanaza v. GreenPoint Mortgage Funding, Inc.

• Court: District Court, N.D. California
• Decided: December 27, 2022
• Docket: 3:22-cv-05657
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARKO TULCANAZA, Case No. 22-cv-05657-WHO

8 Plaintiff, ORDER DISMISSING CASE FOR 9 v. FAILURE TO PROSECUTE

10 GREENPOINT MORTGAGE FUNDING, Re: Dkt. No. 20 INC., et al., 11 Defendants.

12 13 On October 7, 2022, defendants Mortgage Electronic Registration Systems, Inc. (“MERS”) 14 and GreenPoint Mortgage Funding, Inc. (“GreenPoint”) moved to dismiss all of Tulcanaza’s 15 claims against them. See Dkts. 8, 10. Tulcanaza failed to timely oppose the motions. 16 Accordingly, on November 28, I issued an order to show cause for failure to prosecute and 17 allowed Tulcanza to oppose the motions by December 5. Dkt. 18. Tulcanaza subsequently filed a 18 statement of non-opposition to the MERS motion to dismiss but did not address GreenPoint’s 19 motion. Dkt. 19. Because it was unclear whether Tulcanaza sought to dismiss his claims against 20 GreenPoint as well, on December 12 I ordered Tulcanaza to respond to GreenPoint’s motion by or 21 before December 19, or else his complaint would be dismissed for failure to prosecute. Dkt. 20. 22 Tulcanaza has not filed an opposition or otherwise responded to my December 12 order. 23 It is well established that district courts have sua sponte authority to dismiss actions 24 for failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Hells Canyon 25 Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that a court 26 may sua sponte dismiss an action pursuant to Rule 41(b)). In deciding whether to dismiss for 27 failure to prosecute or comply with court orders, a district court must consider five factors: “(1) 1 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 2 cases on their merits; and (5) the availability of less drastic sanctions.” Omstead v. Dell, 594 F.3d 3 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). 4 The first two factors—public interest in expeditious resolution of litigation and the court’s 5 need to manage its docket—weigh in favor of dismissal. As described above, GreenPoint filed a 6 motion to dismiss and Tulcanaza failed to timely oppose it. I issued two orders to show cause 7 for failure to prosecute and gave Tulcanaza multiple chances to file an opposition, effectively 8 extending the response deadline from October 21 to December 19. Tulcanaza still has not filed an 9 opposition to GreenPoint’s motion or otherwise responded to my December 12 order. This failure 10 to prosecute hinders my ability to move this case forward toward disposition and suggests that 11 Tulcanaza does not intend to litigate this action diligently. 12 The third factor—prejudice to defendant—also weighs in favor of dismissal. A rebuttable 13 presumption of prejudice to defendants arises when plaintiffs unreasonably delay prosecution of 14 an action. See In re Eisen, 31 F.3d 1447, 1452–53 (9th Cir. 1994). Nothing suggests such a 15 presumption is unwarranted here. 16 The fourth factor—public policy in favor of deciding cases on the merits—ordinarily 17 weighs against dismissal. However, it is a plaintiff’s responsibility to move toward disposition at 18 a reasonable pace. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991) (“Although 19 there is indeed a policy favoring disposition on the merits, it is the responsibility of the moving 20 party to move towards that disposition at a reasonable pace, and to refrain from dilatory and 21 evasive tactics.”). Tulcanaza has not discharged this responsibility despite multiple opportunities 22 to oppose the pending motion to dismiss. Tulcanaza was granted sufficient time in which to 23 oppose GreenPoint’s motion. Under these circumstances, the policy favoring resolution of 24 disputes on the merits does not outweigh Tulcanaza’s failure to file responsive documents within 25 the time granted. 26 The fifth factor—availability of less drastic sanctions—also weighs in favor of dismissal. 27 Tulcanaza had the opportunity to oppose GreenPoint’s motion to dismiss but did not do so. I then 1 For the foregoing reasons, I find that the factors weigh in favor of dismissal. This action is 2 || hereby DISMISSED without prejudice for failure to prosecute and comply with court orders 3 pursuant to Federal Rule of Civil Procedure 41(b). 4 IT IS SO ORDERED. 5 Dated: December 27, 2022

7 ® William H. Orrick 8 United States District Judge 9 10 11 12

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