RUTH WIESER, No. 2:24-cv-01910-DJC-CSK
Plaintiff,
v. ORDER
MR. COOPER GROUP, INC., et al.,
Defendants.
Defendants have filed a Motion to Dismiss Plaintiff’s First Amended Complaint
in its entirety, arguing the claims are time-barred and insufficiently pled. Plaintiff has
failed to timely oppose or otherwise respond to Defendant’s Motion despite
numerous warnings from this Court that failure to comply with the Local Rules or this
Court’s orders could result in sanctions, including dismissal of this action. Plaintiff has
also failed to resp ond to an Order to Show Cause issued by this Court ordering Plaintiff to explain why this action should not be dismissed for failure to prosecute. Accordingly, given Plaintiff’s numerous failures to comply with this Court’s orders and the Local Rules, the Court finds that dismissal of this action is appropriate. Plaintiff’s First Amended Complaint shall be dismissed for Plaintiff’s failure to prosecute, Defendants’ Motion to Dismiss shall be denied as moot, and the Clerk of Court shall be directed to close this case.
Plaintiff Ruth Wieser filed this action on February 16, 2024, in state court,
alleging seven causes of action for (1) negligence, (2) negligent infliction of emotional
distress, (3) negligent misrepresentation, (4) intentional infliction of emotional distress,
(5) breach of contract, (6) breach of the implied duty of good faith and fair dealing,
and (7) wrongful death. (ECF No. 1-1.) Defendants Mr. Cooper Group, Inc. and Joey
Khalil removed the action to federal court on July 11, 2024, on the basis of diversity
jurisdiction, and moved to dismiss the claims. (ECF Nos. 1, 4.) Plaintiff failed to timely
oppose dismissal but sought the Court’s leave to file a belated opposition. (ECF No.
8.) The Court granted Plaintiff’s request, but admonished Plaintiff that a failure to
comply with the Local Rules could be grounds for sanctions. (ECF No. 10.) The Court
subsequently dismissed Plaintiff’s first through sixth claims on the basis that they were
untimely, and seventh claim on the basis that it was inadequately pled. (ECF No. 14.)
The Court granted Plaintiff 30 days to file an amended complaint. (Id.)
Plaintiff failed to file an amended complaint within 30 days. Accordingly, the
Court issued an Order to Show Cause on March 11, 2025, ordering Plaintiff to show
cause why the Court should not impose sanctions, including dismissal of the action,
for Plaintiff’s failure to comply with the Court’s orders. (ECF No. 15.) Plaintiff did not
respond to the Order to Show Cause but filed a First Amended Complaint seven days
thereafter. (ECF No. 16.) Accordingly, the Court discharged the Order to Show Cause
but warned Plaintiff that future failures to respond to the Court’s orders could result in
sanctions. (ECF No. 17.)
Defendants again moved to dismiss Plaintiff’s claims on April 1, 2025, arguing
Plaintiffs first through sixth claims were untimely and all the claims were insufficiently
pled. (ECF No. 19.) Plaintiff failed to timely oppose. Thus, the Court issued another
Order to Show Cause on May 15, 2025, ordering Plaintiff to show cause within seven
days “why the Court should not construe Plaintiff’s failure to file a timely opposition as
a non-opposition to Defendant’s motion and why this case should not be dismissed for failure to prosecute.” (ECF No. 22.) To date, Plaintiff has failed to respond to the
Court’s Order to Show Cause or otherwise oppose dismissal of her claims.
Under Federal Rule of Civil Procedure 41, a court may dismiss an action for
failure to prosecute or failure to comply with the Federal Rules of Civil Procedure, the
court’s local rules, or any order of the court. Fed. R. Civ. P. 41(b); see also Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal Rule of Civil
Procedure 41(b), the district court may dismiss an action for failure to comply with any
order of the court.”); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)
(dismissal for failure to prosecute and to comply with local rules). This Court’s Local
Rules are in accord. See E.D. Cal. L.R. 110 (“Failure of counsel or of a party to comply
with these Rules or with any order of the Court may be grounds for imposition by the
Court of any and all sanctions authorized by statute or Rule or within the inherent
power of the Court.”). A court may act on its own accord in exercising this authority as
district courts have inherent power to control their dockets. Hells Canyon Preservation
Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte
dismissals under Rule 41(b)); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829,
831 (9th Cir. 1986).
In determining whether to dismiss an action, the Court must consider several
factors: (1) “the public’s interest in expeditious resolution of litigation”; (2) “the court’s
need to manage its docket”; (3) “the risk of prejudice to the defendants”; (4) “the
public policy favoring disposition of cases on their merits”; and (5) “the availability of
less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).
Applying the factors for involuntary dismissal, the Court finds this action should
be dismissed. Plaintiff has continually failed to diligently prosecute this action,
including by failing to timely oppose two motions to dismiss and failing to timely file
an amended complaint. The Court has admonished Plaintiff numerous times for these failures to no avail. (See ECF Nos. 10, 15, 17, 22.) Plaintiff’s lack of diligence is
particularly distressing given this Court’s extremely high caseload, as well as the high
caseload in the Eastern District of California generally. Thus, this Court finds that the
first and second factors—the public’s interest in expeditious resolution of litigation and
the Court’s need to manage its docket—weigh in favor of dismissal.
The third factor—prejudice to defendants—also weighs in favor of dismissal.
While this case is little more than a year old, Defendants have been prevented from
attempting to resolve this case on the merits by Plaintiff’s unreasonable delay in
prosecuting this action. Unreasonable delay is presumed to be prejudicial. See, e.g.,
Allen v. Bayer Corp. (In re: Phenylpropanolamine (PPA) Prods. Liab. Litig.), 460 F.3d
1217, 1227 (9th Cir. 2006).
The fifth factor—availability of less drastic sanctions—also favors dismissal. As
noted above, the Court has already pursued remedies less drastic than a
recommendation of dismissal. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th
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RUTH WIESER, No. 2:24-cv-01910-DJC-CSK
Plaintiff,
v. ORDER
MR. COOPER GROUP, INC., et al.,
Defendants.
Defendants have filed a Motion to Dismiss Plaintiff’s First Amended Complaint
in its entirety, arguing the claims are time-barred and insufficiently pled. Plaintiff has
failed to timely oppose or otherwise respond to Defendant’s Motion despite
numerous warnings from this Court that failure to comply with the Local Rules or this
Court’s orders could result in sanctions, including dismissal of this action. Plaintiff has
also failed to resp ond to an Order to Show Cause issued by this Court ordering Plaintiff to explain why this action should not be dismissed for failure to prosecute. Accordingly, given Plaintiff’s numerous failures to comply with this Court’s orders and the Local Rules, the Court finds that dismissal of this action is appropriate. Plaintiff’s First Amended Complaint shall be dismissed for Plaintiff’s failure to prosecute, Defendants’ Motion to Dismiss shall be denied as moot, and the Clerk of Court shall be directed to close this case.
Plaintiff Ruth Wieser filed this action on February 16, 2024, in state court,
alleging seven causes of action for (1) negligence, (2) negligent infliction of emotional
distress, (3) negligent misrepresentation, (4) intentional infliction of emotional distress,
(5) breach of contract, (6) breach of the implied duty of good faith and fair dealing,
and (7) wrongful death. (ECF No. 1-1.) Defendants Mr. Cooper Group, Inc. and Joey
Khalil removed the action to federal court on July 11, 2024, on the basis of diversity
jurisdiction, and moved to dismiss the claims. (ECF Nos. 1, 4.) Plaintiff failed to timely
oppose dismissal but sought the Court’s leave to file a belated opposition. (ECF No.
8.) The Court granted Plaintiff’s request, but admonished Plaintiff that a failure to
comply with the Local Rules could be grounds for sanctions. (ECF No. 10.) The Court
subsequently dismissed Plaintiff’s first through sixth claims on the basis that they were
untimely, and seventh claim on the basis that it was inadequately pled. (ECF No. 14.)
The Court granted Plaintiff 30 days to file an amended complaint. (Id.)
Plaintiff failed to file an amended complaint within 30 days. Accordingly, the
Court issued an Order to Show Cause on March 11, 2025, ordering Plaintiff to show
cause why the Court should not impose sanctions, including dismissal of the action,
for Plaintiff’s failure to comply with the Court’s orders. (ECF No. 15.) Plaintiff did not
respond to the Order to Show Cause but filed a First Amended Complaint seven days
thereafter. (ECF No. 16.) Accordingly, the Court discharged the Order to Show Cause
but warned Plaintiff that future failures to respond to the Court’s orders could result in
sanctions. (ECF No. 17.)
Defendants again moved to dismiss Plaintiff’s claims on April 1, 2025, arguing
Plaintiffs first through sixth claims were untimely and all the claims were insufficiently
pled. (ECF No. 19.) Plaintiff failed to timely oppose. Thus, the Court issued another
Order to Show Cause on May 15, 2025, ordering Plaintiff to show cause within seven
days “why the Court should not construe Plaintiff’s failure to file a timely opposition as
a non-opposition to Defendant’s motion and why this case should not be dismissed for failure to prosecute.” (ECF No. 22.) To date, Plaintiff has failed to respond to the
Court’s Order to Show Cause or otherwise oppose dismissal of her claims.
Under Federal Rule of Civil Procedure 41, a court may dismiss an action for
failure to prosecute or failure to comply with the Federal Rules of Civil Procedure, the
court’s local rules, or any order of the court. Fed. R. Civ. P. 41(b); see also Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal Rule of Civil
Procedure 41(b), the district court may dismiss an action for failure to comply with any
order of the court.”); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)
(dismissal for failure to prosecute and to comply with local rules). This Court’s Local
Rules are in accord. See E.D. Cal. L.R. 110 (“Failure of counsel or of a party to comply
with these Rules or with any order of the Court may be grounds for imposition by the
Court of any and all sanctions authorized by statute or Rule or within the inherent
power of the Court.”). A court may act on its own accord in exercising this authority as
district courts have inherent power to control their dockets. Hells Canyon Preservation
Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte
dismissals under Rule 41(b)); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829,
831 (9th Cir. 1986).
In determining whether to dismiss an action, the Court must consider several
factors: (1) “the public’s interest in expeditious resolution of litigation”; (2) “the court’s
need to manage its docket”; (3) “the risk of prejudice to the defendants”; (4) “the
public policy favoring disposition of cases on their merits”; and (5) “the availability of
less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).
Applying the factors for involuntary dismissal, the Court finds this action should
be dismissed. Plaintiff has continually failed to diligently prosecute this action,
including by failing to timely oppose two motions to dismiss and failing to timely file
an amended complaint. The Court has admonished Plaintiff numerous times for these failures to no avail. (See ECF Nos. 10, 15, 17, 22.) Plaintiff’s lack of diligence is
particularly distressing given this Court’s extremely high caseload, as well as the high
caseload in the Eastern District of California generally. Thus, this Court finds that the
first and second factors—the public’s interest in expeditious resolution of litigation and
the Court’s need to manage its docket—weigh in favor of dismissal.
The third factor—prejudice to defendants—also weighs in favor of dismissal.
While this case is little more than a year old, Defendants have been prevented from
attempting to resolve this case on the merits by Plaintiff’s unreasonable delay in
prosecuting this action. Unreasonable delay is presumed to be prejudicial. See, e.g.,
Allen v. Bayer Corp. (In re: Phenylpropanolamine (PPA) Prods. Liab. Litig.), 460 F.3d
1217, 1227 (9th Cir. 2006).
The fifth factor—availability of less drastic sanctions—also favors dismissal. As
noted above, the Court has already pursued remedies less drastic than a
recommendation of dismissal. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th
Cir. 1987) (“[E]xplicit discussion of alternatives is unnecessary if the district court
actually tries alternatives before employing the ultimate sanction of dismissal.”), cert.
denied, Malone v. Frank, 488 U.S. 819 (1988). The Court has provided Plaintiff with
the opportunity to cure multiple late filings and has advised Plaintiff that she is
required to follow this Court’s orders as well as the Local Rules. This Court also
warned Plaintiff that failure to file a response to Court’s latest Order to Show Cause
could result in sanctions including dismissal of this action. (See ECF No. 22.) Warning
a plaintiff that failure to take steps towards resolution of his or her action on the merits
will result in dismissal satisfies the requirement that the court consider the alternatives.
See, e.g., Ferdik, 963 F.2d at 1262 (“[O]ur decisions also suggest that a district court’s
warning to a party that his failure to obey the court’s order will result in dismissal can
satisfy the ‘consideration of alternatives’ requirement.”). At this juncture, the Court
finds no suitable alternative to dismissal of this action.
//// Finally, the Court recognizes the importance of giving due weight to the fourth
factor, which addresses the public policy favoring disposition of cases on the merits.
However, for the reasons set forth above, factors one, two, three, and five strongly
support dismissal of this action, and factor four does not materially counsel otherwise,
as dismissal is proper “where at least four factors support dismissal or where at least
three factors ‘strongly’ support dismissal.” Hernandez v. City of El Monte, 138 F.3d
393, 399 (9th Cir. 1998) (citations and quotation marks omitted). Under the
circumstances of this case, the other relevant factors outweigh the general public
policy favoring disposition of actions on their merits. See Hells Canyon, 403 F.3d at
689 (approving court’s sua sponte dismissal under Rule 41(b) for a plaintiff’s failure to
prosecute or comply with the Federal Rules of Civil Procedure or the court’s orders).
In accordance with the above, it is hereby ORDERED:
1. Plaintiff’s First Amended Complaint (ECF No. 16.) is DISMISSED
without prejudice pursuant to Federal Rule of Civil Procedure 41(b);
2. Defendants’ Motion to Dismiss (ECF No. 19) is DENIED as moot;
3. All pending hearings are VACATED; and
4. The Clerk of the Court is directed to close this case and enter
judgment accordingly.
Dated: May 27, 2025 /s/ Daniel J. Calabretta THE HONORABLE DANIEL J. CALABRETTA UNITED STATES DISTRICT JUDGE