Opinion
No. C 11-4353 MEJ
10-13-2011
RONALD S ARMSTRONG, Plaintiff, v. THE BANK OF NEW YORK MELLON, Defendant.
ORDER FOR CLERK OF COURT TO REASSIGN CASE
REPORT & RECOMMENDATION
On September 1, 2011, Defendant The Bank of New York Mellon removed the above-captioned case from Sonoma County Superior Court. Dkt. No. 1. On September 8, 2011, Defendant filed a Motion to Dismiss and a Motion to Strike, with a noticed hearing date of October 20, 2011. Dkt. Nos. 5, 6. Plaintiff failed to file any opposition pursuant to Civil Local Rule 7. Further, on September 9, 2011, the Court ordered the parties to either consent or decline magistrate jurisdiction by September 22, 2011. Dkt. No. 9. Plaintiff failed to comply with this deadline as well. Based on Plaintiff's inaction, the Court vacated the motion to dismiss hearing date and ordered him to show cause why this case should not be dismissed for failure to prosecute and comply with court deadlines. The Court ordered Plaintiff to file a declaration by October 6, 2011. Dkt. No. 11. Plaintiff failed to respond. Based on this procedural history, the Court finds it appropriate to dismiss this case pursuant to Federal Rule of Civil Procedure 41(b).
Under Rule 41(b), failure to comply with a court order can warrant dismissal. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). In "determining whether to dismiss a case for failure to comply with a court order, the district court must weigh five factors including '(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 alternatives.'" Id. at 1260-61 (quoting Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)). Here, Plaintiff failed to file an opposition to Defendant's pending motion to dismiss, failed to comply with Court orders and deadlines, failed to respond to the order to show cause, and has made no appearance in this matter since Defendant removed the Complaint. Thus, the Court finds that the Ferdik factors weigh in favor of dismissal.
Accordingly, because Plaintiff has yet to consent to the undersigned's jurisdiction, the Court hereby ORDERS the Clerk of Court to reassign this case to a district court judge. The undersigned RECOMMENDS that the newly-assigned judge dismiss this case for failure to prosecute and failure to comply with the Court's deadlines and orders.
Pursuant to Federal Rule of Civil Procedure 72, any party may serve and file objections to this Report and Recommendation within 14 days after being served.
IT IS SO ORDERED AND RECOMMENDED.
Maria-Elena James
Chief United States Magistrate Judge
RONALD S ARMSTRONG, Plaintiff,
v.
THE BANK OF NEW YORK MELLON, Defendant.
Case Number: 11-04353 MEJ
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 13, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.
Joel Mark Feinstein
Law Offices of Joel M. Feinstein, APC
2021 Business Center Drive
Suite 213
Irvine, CA 92612
Richard W. Wieking, Clerk
By: Brenda Tolbert, Deputy Clerk