Evalobo et al v. Pite Duncan, Llp et al

MOTION to Dismiss for Lack of Prosecution

D. Neb.February 27, 2017

{40974781;1} 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A K E R M A N L L P 1 16 0 N .T O W N C E N T E R D R IV E , S U IT E 33 0 L A S V E G A S , N E V A D A 89 1 01 T E L .: (7 02 ) 6 34 -5 00 0 - F A X : (7 02 ) 38 0 -8 57 2 MELANIE D. MORGAN, ESQ. Nevada Bar No. 8215 TENESA S. SCATURRO, ESQ. Nevada Bar No. 12488 AKERMAN LLP 1160 Town Center Drive, Suite 330 Las Vegas, Nevada 89144 Telephone: (702) 634-5000 Facsimile: (702) 380-8572 Email: melanie.morgan@akerman.com tenesa.scaturro@akerman.com Attorneys for U.S. Bank National Trust Company As Trustee, Successor In Interest To Bank Of America Association, As Trustee For Lehman As Trust Mortgage Pass-Through Certificates 2006-11 Its Successors And Assigns UNITED STATES DISTRICT COURT DISTRICT OF NEVADA RICHARD EVALOBO, PRISCILLA SANTOS CORTEZ, Plaintiff, v. PITE DUNCAN LLP, REBECCA P. KERNS, ESQUIRE, U.S. BANK NATIONAL TRUST COMPANY AS TRUSTEE, SUCCESSOR IN INTEREST TO BANK OF AMERICA ASSOCIATION, AS TRUSTEE FOR LEHMAN AS TRUST MORTGAGE PASS-THROUGH CERTIFICATES 2006-11 ITS SUCCESSORS AND ASSIGNS, Defendants. Case No.: 2:16-cv-00539-APG-VCF U.S. BANK'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 41(B) Defendant, U.S. Bank, N.A., As Trustee, Successor In Interest to Bank of America National Association, As Trustee, Successor by Merger to Lasalle Bank National Association, As Trustee for Lehman XS Trust Mortgage Pass-Through Certificates, Series 2006-11, erroneously sued as U.S. Bank National Trust Company as Trustee Successor in Interest to Bank of America Association, as Trustee for Lehman as Trust Mortgage Pass-Through Certificates 2006-11 its Successors and Case 2:16-cv-00539-APG-VCF Document 23 Filed 02/27/17 Page 1 of 5 {40974781;1}2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A K E R M A N L L P 1 16 0 N .T O W N C E N T E R D R IV E , S U IT E 33 0 L A S V E G A S , N E V A D A 89 1 01 T E L .: (7 02 ) 6 34 -5 00 0 - F A X : (7 02 ) 38 0 -8 57 2 Assigns (U.S. Bank), files this motion to dismiss for failure to prosecute under Fed. R. Civ. P. 41(b). MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS This Court should dismiss Plaintiffs' complaint pursuant to Fed. R. Civ. P. 41(b). Plaintiff initiated this action on March 10, 2016. ECF No. 1. Plaintiff later filed an amended complaint on March 24, 2016. ECF No. 5. Defendants moved to dismiss on April 19, 2016. ECF No. 9. This Court granted Defendants' motion on December 20, 2016, dismissing with prejudice most of Plaintiffs' claims. ECF No. 19. The Court also granted Plaintiffs leave to amend the complaint to cure the defects in their claims of common law fraud, FDCPA violations, and breach of contract, if sufficient facts exists, within 20 days of the Order. Id. Plaintiff then moved for leave of Court to file an amended complaint, attaching a proposed "first amended complaint." ECF No. 20. The Court denied that motion by Order dated January 13, 2017, stating that Plaintiffs appeared to have ignored its earlier Order. ECF No. 21. The Court gave Plaintiffs a final chance to amend their complaint to address those issues detailed in its prior Order. Id. The Court stated that if Plaintiffs again failed to file a proper amended complaint, their complaint would be dismissed without leave to amend and the case would be closed. Id. The Court further stated that Plaintiffs must file their amended complaint within 14 days of its Order. Id. The deadline for Plaintiffs to file their amended complaint was January 27, 2017. To date, Plaintiffs have not filed an amended complaint. This Court should dismiss Plaintiffs' action for failure to prosecute and comply with this Court's order. II. LEGAL DISCUSSION Pursuant to Fed. R. Civ. P. 41(b), "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Where a Fed. R. Civ. P. 12(b)(6) motion to dismiss is granted with leave to amend, and the plaintiff fails to amend, the case should be dismissed for failure to prosecute. See Toyota Landscape Co. v. Building Case 2:16-cv-00539-APG-VCF Document 23 Filed 02/27/17 Page 2 of 5 {40974781;1}3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A K E R M A N L L P 1 16 0 N .T O W N C E N T E R D R IV E , S U IT E 33 0 L A S V E G A S , N E V A D A 89 1 01 T E L .: (7 02 ) 6 34 -5 00 0 - F A X : (7 02 ) 38 0 -8 57 2 Material & Dump Truck Drives Local 420, 726 F.2d 525, 528 (9th Cir. 1984); see also Yourish v. California Amplifier, 191 F.3d 983, 988 (9th Cir. 1999). In Yourish, the district court granted a motion to dismiss, allowing the plaintiff 60 days to amend. 191 F.3d at 986. The plaintiff failed to amend within 60 days. Id. The district court then granted defendant's motion to dismiss for failure to prosecute. Id. The Ninth Circuit affirmed the dismissal, finding the district court judge had the discretion to dismiss the case under Rule 41(b) based on the plaintiff's non-compliance with a court order. Id. at 988. In Ken-Mac Metals v. Independent Sheet Metal, Inc., 2011 WL 1937135, *2 (D. Nev. May 19, 2011), the court set forth the following factors that should be analyzed in ruling on a Rule 41(b) motion: A dismissal pursuant to Rule 41(b) 'must be supported by a showing of unreasonable delay.' Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). The District Court must also weigh the following factors to determine whether a Rule 41(b) dismissal is warranted: '(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.' Id. (quoting Henderson 779 F.2d at 1423). Here, all five factors support dismissal. Plaintiffs' delay in filing their amended complaint is unreasonable. Plaintiffs have been provided ample opportunities to file an amended complaint. This Court gave Plaintiffs a final chance to amend their complaint, allowing until January 27, 2017 for that filing. Almost one month after that deadline has passed, Plaintiffs have yet to file their amended complaint. Dismissing cases like this one, which have not progressed past the complaint stage almost a year after filing, would further the public's interest in expeditious resolution of litigation and aid the Court in managing its docket. The prejudice to Defendants is readily apparent, as without dismissal they will continue to be stuck in unnecessary and costly litigation. Less drastic sanctions are not available, as Plaintiffs have already been provided opportunities to amend. The case should be dismissed without leave to amend. Case 2:16-cv-00539-APG-VCF Document 23 Filed 02/27/17 Page 3 of 5 {40974781;1}4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A K E R M A N L L P 1 16 0 N .T O W N C E N T E R D R IV E , S U IT E 33 0 L A S V E G A S , N E V A D A 89 1 01 T E L .: (7 02 ) 6 34 -5 00 0 - F A X : (7 02 ) 38 0 -8 57 2 III. CONCLUSION Plaintiffs filed this action on March 10, 2016, but have failed to timely prosecute their case. Almost one year later, there is still no operative complaint in this action. Plaintiff failed to comply with this Court's December 20, 2016 Order and January 13, 2017 Order. This Court should dismiss Plaintiffs' action pursuant to Fed. R. Civ. P. 41(b). DATED this 27th day of February, 2017. AKERMAN LLP /s/ Tenesa S. Scaturro MELANIE D. MORGAN, ESQ. Nevada Bar No. 8215 TENESA S. SCATURRO, ESQ. Nevada Bar No. 12488 1160 Town Center Drive, Suite 330 Las Vegas, Nevada 89144 Attorneys for U.S. Bank National Trust Company As Trustee, Successor In Interest To Bank Of America Association, As Trustee For Lehman As Trust Mortgage Pass-Through Certificates 2006- 11 Its Successors And Assigns Case 2:16-cv-00539-APG-VCF Document 23 Filed 02/27/17 Page 4 of 5 {40974781;1}5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A K E R M A N L L P 1 16 0 N .T O W N C E N T E R D R IV E , S U IT E 33 0 L A S V E G A S , N E V A D A 89 1 01 T E L .: (7 02 ) 6 34 -5 00 0 - F A X : (7 02 ) 38 0 -8 57 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on the 27th day of February, 2017, and pursuant to FRCP 5, I served via CM/ECF and/or deposited for mailing in the U.S. Mail a true and correct copy of the foregoing DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 41(B) postage prepaid and addressed to: Priscilla Santos Cortez 4132 Calmoor Street National City, CA 91950 Laurel I. Handley, Esq. Jory C. Garabedian, Esq. ALDRIDGE PITE, LLP 520 South 4th St., Suite 360 Las Vegas, Nevada 89101 /s/Jill Sallade An employee of AKERMAN LLP Case 2:16-cv-00539-APG-VCF Document 23 Filed 02/27/17 Page 5 of 5