Luis M. Crescitelli; Ryan Calvo v. Bank of America, National Association

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS M. CRESCITELLI; RYAN
CALVO,
Plaintiffs - Appellants,
v.
BANK OF AMERICA, NATIONAL
ASSOCIATION,
Defendant - Appellee.
No. 12-56920
D.C. No. 8:12-cv-00625-DOC-
RNB
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted April 10, 2014**
Pasadena, California
Before: FARRIS and HURWITZ, Circuit Judges, and FRIEDMAN, Senior District
Judge.***
FILED
APR 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Paul L. Friedman, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.

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Luis Crescitelli and Ryan Calbo (Plaintiffs) appeal a district court judgment
entered pursuant to Federal Rule of Civil Procedure 41(b) dismissing this diversity
action against Bank of America after Plaintiffs failed to meet a court-ordered
deadline for filing an amended complaint. We review the dismissal for an abuse of
discretion, Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), and affirm.
After removal, Bank of America filed a motion to dismiss for failure to state a
claim. Plaintiffs did not file an opposition to that motion. Rather than grant the
motion outright, the district court instead dismissed the complaint without prejudice,
giving Plaintiffs leave to file an amended complaint within thirteen days of its order.
The order expressly warned that failure to file an amended complaint would result in
dismissal with prejudice.
Plaintiffs filed an amended complaint two days after the deadline. The district
court therefore did not abuse its discretion in dismissing this action with prejudice for
failing to comply with its express order. See Pagtalunan v. Galaza, 291 F.3d 639,
642–43 (9th Cir. 2002). Although Plaintiffs claim that a timely filing was submitted
and then rejected by the clerk, the district judge correctly noted that the clerk’s record
belies that contention.
AFFIRMED.
2

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