1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

6

7 BENIGNO G. CHICO, et al., Case No. 20-cv-01963-PJH 8 Plaintiffs,

9 v. ORDER GRANTING MOTION TO DISMISS AND DISMISSING CASE 10 WELLS FARGO BANK, N.A., et al., FOR FAILURE TO PROSECUTE 11 Defendants. Re: Dkt. No. 10 12

13 14 Before the court is defendants Wells Fargo Bank, N.A. (“Wells Fargo”) and U.S. 15 Bank, N.A., as Trustee For Structured Asset Investment Loan Trust, Mortgage Pass- 16 Through Certificates, Series 2005-7’s (“U.S. Bank” and, together with Wells Fargo, 17 “defendants”) motion to dismiss. Plaintiffs Benigno G. Chico and Helen O. Chico 18 (“plaintiffs”) did not file an opposition to defendants’ motion to dismiss and, accordingly, 19 the court issued an order to show cause why this case should not be dismissed for failure 20 to prosecute. Dkt. 16. The court ordered plaintiffs to file an opposition or statement of 21 non-opposition not more than seven days from the date on which the order to show 22 cause was issued. Id. at 1. Plaintiffs have not complied with the order to show cause. 23 Having read defendants’ papers and carefully considered their arguments and the 24 relevant legal authority, and good cause appearing, the court hereby rules as follows. 25 Plaintiffs filed their complaint in Alameda County Superior Court on February 18, 26 2020. Dkt. 1 at 11. Defendants removed this action to federal court on March 19, 2020 27 (Dkt. 1) and on March 27, 2020, they filed the present motion to dismiss. Dkt. 10. The 1 12), which occurred on April 13, 2020 (Dkt. 15). The parties did not reach a resolution. 2 Defendants’ motion remained pending during this time and plaintiffs failed to file an 3 opposition in the time period required by Civil Local Rule 7-3. As discussed, the court 4 issued an order to show cause recounting this same procedural history and requiring 5 plaintiffs to submit an opposition or statement of non-opposition within seven days of the 6 order, which was dated April 27, 2020. Dkt. 16. The court warned plaintiffs that failure to 7 comply with the order could result in a dismissal of their case for failure to prosecute and 8 failure to follow a court order. Id. at 2. The deadline to file an opposition has since 9 passed and no opposition, timely or otherwise, has been filed. 10 Federal Rule of Civil Procedure 41(b) permits a district court to dismiss an action 11 for failure to comply with any order of the court. Ferdik v. Bonzelet,

, 1260 12 (9th Cir. 1992). In addition, a party’s failure to oppose a motion to dismiss is also 13 grounds for dismissal. Feinberg-Tomahawk v. City & Cty. of San Francisco, No. 14-CV- 14 02275-JD,

, at *1 (N.D. Cal. July 29, 2014) (citing Espinosa v. Wash. 15 Mut. Bank, No. C 10–04464 SBA,

, at *1 (N.D. Cal. Jan. 31, 2011); and 16 Ghazali v. Moran,

(9th Cir. 1995) (per curiam)). “In determining whether 17 to dismiss a claim for failure to prosecute or failure to comply with a court order, the Court 18 must weigh the following factors: (1) the public’s interest in expeditious resolution of 19 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 20 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public 21 policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza,

, 22 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260–61). Dismissal is appropriate “where 23 at least four factors support dismissal . . . or where at least three factors ‘strongly’ support 24 dismissal.” Hernandez v. City of El Monte,

(9th Cir. 1998) (quoting 25 Henderson v. Duncan,

(9th Cir. 1986)). 26 Here, four factors favor dismissal. First, “[t]he public’s interest in expeditious 27 resolution of litigation always favors dismissal.”

(citing Yourish v. Cal. Amplifier, 191 1 show cause, plaintiffs delay resolution of this litigation. Second, “[i]t is incumbent upon 2 the Court to manage its docket without being subject to routine noncompliance of 3 litigants.”

(citing Ferdik,

). Again, plaintiffs have failed to comply with 4 the Local Rules and a court order. This failure is especially notable as plaintiffs are 5 represented by counsel and not proceeding pro se. 6 Third, “[t]o prove prejudice, a defendant must establish that plaintiff’s actions 7 impaired defendant’s ability to proceed to trial or threatened to interfere with the rightful 8 decision of the case.”

(citing Malone v. U.S. Postal Serv.,

(9th Cir. 9 1987)). “[T]he risk of prejudice to the defendant is related to the plaintiff’s reason for 10 defaulting . . . . on the judge’s order.” Yourish, 191 F.3d at 991–92. Further, “a 11 presumption of prejudice arises from a plaintiff’s unexplained failure to prosecute.” 12 Laurino v. Syringa Gen. Hosp.,

, 753 (9th Cir. 2002). Here, plaintiff has 13 provided no reason for failing to respond. The failure to provide any reason counsels in 14 favor of dismissal. See Espinosa,

, at *2 (“Here, Plaintiffs have offered 15 no explanation for their failure to respond nor is any apparent from the record.”); see also 16 L.S.F. v. Coll. Bd., 19-cv-06560-TSH,

, at *1 (N.D. Cal. Mar. 27, 2020) 17 (finding failure to respond to order to show cause and offering no explanation as weighing 18 in favor of dismissal). 19 Fourth, “a district court’s warning to a party that failure to obey the court’s order 20 will result in dismissal can satisfy the ‘consideration of alternatives’ requirement.” Ferdik, 21

(quoting Malone, 833 F.2d at 132–33). This court’s order to show 22 cause explicitly cautioned plaintiffs that failure to respond “will result in dismissal of the 23 action for failure to prosecute, and to comply with a court order.” Dkt. 16 at 1–2. 24 Fifth, “[p]ublic policy favors disposition of cases on the merits. Thus, this factor 25 weighs against dismissal.” Pagtalunan,

(citing Hernandez,

399). While this factor weighs against dismissal, the foregoing four factors weigh in favor 27 of dismissing this action. 1 For the foregoing reasons, defendants’ motion to dismiss is GRANTED. The court 2 DISMISSES this action WITH PREJUDICE for failure to prosecute. 3 IT IS SO ORDERED. 4 Dated: May 14, 2020 5 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 6 United States District Judge

7

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27