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Rosales v. Mortgage Store Financial

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 16, 2009

CARLOS M. ROSALES; GLORIA S. ROSALES, PLAINTIFFS,
v.
THE MORTGAGE STORE FINANCIAL, INC.; INDYMAC FINANCIAL SERVICES; COUNTRYWIDE HOME LOANS; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; DOES 1-100 INCLUSIVE; COUNTRYWIDE FINANCIAL CORPORATION; COUNTRYWIDE BANK, F.S.B.; RECONSTRUST COMPANY; INDYMAC BANK, F.S.B.; FEDERAL DEPOSIT INSURANCE CORPORATION; FEDERAL DEPOSIT INSURANCE CORPORATION, CONSERVATOR FROM INDYMAC FEDERAL BANK, F.S.B.; ONE WEST BANK, F.S.B.; IMB HOLD CO., LLC; IMB MANAGEMENT HOLDINGS, L.P.; BANK OF AMERICA CORPORATION; ANGELO MOZILO; DAVID SAMBOL; COUNTRYWIDE HOME LOANS, INC., DEFENDANTS.

The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER GRANTING THE UNOPPOSED MOTION TO DISMISS [Doc. No. 35]

This matter involves a non-judicial foreclosure on Plaintiffs' real property following the nonpayment of a secured loan. On March 23, 2009, Plaintiffs filed a 313-page First Amended Complaint, alleging sixty-one causes of action ranging from RICO violations to actions under the Ku Klux Klan Act of 1871. [Doc. No. 14]. Finding the First Amended Complaint to be "repetitious and needlessly long," the Court dismissed it pursuant to Fed. R. Civ. P. 8(a) on June 16, 2009, granting Plaintiffs leave to amend. [Doc. No. 30]. On June 30, 2009, Plaintiffs filed an 80-page Second Amended Complaint. [Doc. No. 31].

The Second Amended Complaint alleges sixteen causes of action against as many defendants.

On August 31, 2009, the case was dismissed as to Defendants Federal Deposit Insurance Corporation and Federal Deposit Insurance Corporation, Conservator for Indymac Federal Bank, F.S.B. pursuant to Fed. R. Civ. P. 4(m) for lack of prosecution. [Doc. Nos. 39, 40]. On October 5, 2009, the case was also dismissed as to Defendants Mortgage Store Financial, Inc., One West Bank, IMB Hold Co, LLC, IMB Management Holdings, LP, Angelo Mozilo, and David Sambol. [Doc. Nos. 42, 43].

Currently before the Court is Motion to Dismiss filed by Defendants Countrywide Home Loans, Inc., Countrywide Financial Corporation, Countrywide Bank, F.S.B., Recontrust Company, Mortgage Electronic Registration Systems, Inc., and Bank of America, N.A. ("Moving Defendants").

[Doc. No. 35]. The motion was filed on July 31, 2009, and the hearing on the motion was scheduled for September 28, 2009. On September 23, 2009, not having received any written opposition or statement of non-opposition from Plaintiffs, the Court vacated the hearing and ordered Plaintiffs to respond to Moving Defendants' Motion to Dismiss by October 13, 2009, or risk having their entire case dismissed with prejudice. [Doc. No. 41]. To date, no response has been filed.

DISCUSSION

Civil Local Rule 7.1(e)(2) provides that a party opposing a motion shall file a written opposition or a statement of non-opposition "not later than 14 calendar days prior to the noticed hearing." CIV. L. R. 7.1(e)(2) (emphasis in original); see also id. 7.1(f)(3)(a). If the opposing party fails to respond, "that failure may constitute a consent to the granting of a motion." Id. 7.1(f)(3)(c).*fn1

In the present case, Plaintiffs did not file an opposition to Moving Defendants' Motion to Dismiss as required by Civil Local Rule 7.1(e)(2), nor did they take any action with regard to this Court's express order directing them to respond. "Failure to follow a district court's local rules is a proper ground for dismissal." Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (citation omitted). Moreover, dismissal is also an appropriate sanction for a party's failure to comply with a court order. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) ("District courts have the inherent power to control their dockets and in the exercise of that power they may impose sanctions including, where appropriate, dismissal of a case." (citation omitted)).

Here, the Court expressly warned Plaintiffs that "a failure to comply with [its] order will result in dismissal of the Second Amended Complaint with prejudice" pursuant to Fed. R. Civ. P. 41(b).

[Doc. No. 41]. Seeing as no response has been filed, the Court hereby DISMISSES with prejudice the Second Amended Complaint as to the Moving Defendants as well as any other remaining Defendants.*fn2

CONCLUSION

For the foregoing reasons, the Court GRANTS the unopposed Motion to Dismiss and orders that the entire case be dismissed with prejudice. The Clerk is ordered to close this civil action.

IT IS SO ORDERED.


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