Opinion
3:22-cv-01265-AR
03-03-2023
CAROL WATSON, Plaintiff, v. CALIBER FUNDING, LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; HMC ASSETS, LLC solely in its capacity as separate trustee of CAM XI TRUST; and DOES 1-10, inclusive, Defendants.
FINDINGS & RECOMMENDATION
JEFFREY ARMISTEAD UNITED STATES MAGISTRATE JUDGE
Plaintiff Carol Watson, who is represented by counsel, filed this action on August 25, 2022, against defendants Caliber Home Loans, Inc. (erroneously sued as Caliber Funding, LLC) (Caliber); Mortgage Electronic Registration Systems, Inc. (MERS); HMC Assets, LLC in its capacity as separate trustee of Cam XI Trust (HMC Assets); and Does 1-10. (Compl. ¶ 1, ECF No. 1.) Watson also appears to assert a claim against First American Title Insurance Company (First American), though she does not name First American as a defendant in the case caption. (Id. ¶ 14.)
Defendants subsequently moved to dismiss this action for failure to state a claim. First American filed its motion on October 17, 2022; MERS and HMC Assets filed their joint motion on October 19, 2022; and Caliber filed its motion on November 10, 2022. (Mots. to Dismiss, ECF Nos. 7, 9, 13.) Under Local Rule 7-1(e)(1), Watson had 14 days from the date she was served with each motion to file her responses. She did not file a response to any motion.
On December 12, 2022, the court issued an Order to Show Cause requiring Watson to file written responses to the pending motions to dismiss or to show good cause for her failure to do so. (Order to Show Cause, ECF No. 15.) The court advised Watson that, if she failed to comply timely with that Order, it could treat her failure to respond as a concession on the merits and dismiss this action with prejudice. (Id.) Watson's response to the Order to Show Cause was due January 6, 2023. (Order to Show Cause at 2.) She has not responded and the time to do so has lapsed. Accordingly, the court recommends granting defendants' motions to dismiss (ECF Nos. 7, 9, 13) and dismissing this matter with prejudice.
DISCUSSION
In determining whether to dismiss for failure to prosecute or comply with a court order, the court weighs five 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 defendants/respondents; (4) the availability of less dramatic alternatives; and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). The five-factor test strongly favors dismissal of this action.
Because Watson has taken no action since commencing this lawsuit in August 2022, the public's interest in expeditious resolution of litigation favors dismissal. See Wickenkamp v. Hostetter Law Grp., LLP, 2:15-cv-00296-PK, 2016 WL 10677908, at *11 (D. Or. July 14, 2016) report and recommendation adopted 2016 WL 10677905 (D. Or. Aug. 17, 2016) (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1990) (“[T]he public's interest in expeditious resolution of litigation always favors dismissal.”)). The second factor also favors dismissal because Watson's failure to respond to the motions to dismiss and the Order to Show Cause undermines the court's ability “to manage its docket without being subject to the routine noncompliance of litigants.” Pagtalunan, 291 F.3d at 643. Likewise, given that Watson offers no grounds tending to excuse or explain her failures to respond, the court finds that the prejudice to defendants “is sufficient to support the conclusion that the third factor likewise mitigates in favor of dismissal.” Wickenkamp, 2016 WL 10677908, at *11 (citing Pagtalunan, 291 F.3d at 642). Turning to the fourth factor, the court has already employed the less drastic alternative of issuing an Order to Show Cause, and Watson has forgone her opportunity to take advantage of that alternative. Therefore, dismissal of this action with prejudice-which the court warned of in its Order to Show Cause-is proper.
Finally, although “[p]ublic policy favors disposition of cases on the merits,” the court finds that the fifth factor weighs only weakly against dismissal under the circumstances. Pagtalunan, 291 F.3d at 643. Watson's failure to oppose defendants' motions and comply with the court's Order to Show Cause impairs disposition on the merits. Moreover, “the public policy factor, standing alone, is insufficient to outweigh the other four factors if each is otherwise present.” U.S. ex rel. Berglund v. Boeing, Co., 835 F.Supp.2d 1020, 1053-54 (D. Or. 2011). Accordingly, dismissal is appropriate.
CONCLUSION
For these reasons, the court should GRANT defendants' motions to dismiss (ECF Nos. 7, 9, 13) and dismiss this action with prejudice.
SCHEDULING ORDER
The Findings & Recommendation will be referred to a District Judge. Objections, if any, are due within 14 days. If no objections are filed, the Findings & Recommendation will go under advisement on that date. If objections are filed, a response is due within 14 days. When the response is due or filed, whichever date is earlier, the Findings & Recommendation will go under advisement.
IT IS SO ORDERED.