Commercial Litigation and Arbitration

Rule 41(b) Dismissal — Refusal to Respond to Court’s Ultimatum Either to Amend Complaint or Stand by Complaint = Failure to Prosecute, Is Properly Met with Dismissal

Simmonds v. Wells Fargo Bank, N.A., 2018 U.S. App. LEXIS 17230 (9th Cir. June 25, 2018) (unpublished):

Amany Simmonds appeals from the district court's order dismissing for failure to prosecute her diversity action arising from foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion.  Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063 (9th Cir. 2004). We affirm.

The district court did not abuse its discretion by dismissing Simmonds's action because Simmonds failed to file an amended complaint or indicate that she intended to stand by her complaint. See id. at 1065 ("The failure of the plaintiff eventually to respond to the court's ultimatum — either by amending the complaint or by indicating to the court that it will not do so — is properly met with the sanction of a Rule 41(b) dismissal."); Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (listing factors to be considered in dismissing a case as a sanction for failure to prosecute).


We do not consider matters not specifically and distinctly [*2]  raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).


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