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Chen v. PMC Bancorp.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 23, 2010

YUEH CHEN AND CHEN C. WU, INDIVIDUALS, PLAINTIFFS,
v.
PMC BANCORP, A CALIFORNIA CORPORATION, 01HOMELOAN, ONE WEST BANK, FSB, FIDELITY NATIONAL TITLE COMPANY, NDEX WEST, LLC, DEUTSCHE BANK NATIONAL TRUST COMPANY, AND DOES 1 THROUGH 20, DEFENDANTS.

The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the Motion for Judgment on the Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(c), Or, Alternatively, Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 ("Motion for Judgment on the Second Amended Complaint"), filed by Defendants OneWest Bank, FSB, NDEX West, LLC, and Deutsche Bank National Trust Company ("OneWest Defendants"). (Doc. # 59).

BACKGROUND

On December 3, 2009, Plaintiffs initiated this action by filing a Complaint in this Court. (Doc. # 1). The Complaint asserted various causes of action related to a loan transaction.

On February 26, 2010, Plaintiffs filed a First Amended Complaint "as a matter of course" pursuant to Federal Rule of Civil Procedure 15(a). (Doc. # 24).

On March 17, 2010, the OneWest Defendants filed a motion for judgment on the pleadings. (Doc. # 30).

On April 20, 2010, Plaintiffs filed motion for leave to file a second amended complaint. (Doc. # 38).

On May 28, 2010, the Court granted the motion for leave to file a second amended complaint and denied the motion for judgment on the pleadings. (Doc. # 56). On June 4, 2010, Plaintiff filed the Second Amended Complaint. (Doc. # 57).

On June 10, 2010, the OneWest Defendants filed the Motion for Judgment on the Second Amended Complaint. (Doc. # 59).

DISCUSSION

A district court may properly grant an unopposed motion pursuant to a local rule where the local rule permits, but does not require, the granting of a motion for failure to respond. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). Civil Local Rule 7.1 provides: "If an opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other request for ruling by the court." S.D. Cal. Civ. Local Rule 7.1(f)(3)(a). "Although there is ... a [public] policy favoring disposition on the merits, it is the responsibility of the moving party to move towards that disposition at a reasonable pace, and to refrain from dilatory and evasive tactics." In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994) (affirming grant of motion to dismiss for failure to prosecute); see also Steel v. City of San Diego, No. 09cv1743, 2009 WL 3715257, at *1 (S.D. Cal., Nov. 5, 2009) (dismissing action pursuant to Local Rule 7.1 for plaintiff's failure to respond to a motion to dismiss).

The docket reflects that Plaintiffs, who are represented by counsel, were served with the Motion for Judgment on the Second Amended Complaint. The Motion for Judgment on the Second Amended Complaint and the Court's docket reflect that the hearing for the Motion for Judgment on the Second Amended Complaint was noticed for July 19, 2010. Civil Local Rule 7.1 provides: "each party opposing a motion ... must file that opposition ... with the clerk ... not later than fourteen (14) calendar days prior to the noticed hearing." S.D. Cal. Civ. Local Rule 7.1(e)(2). As of the date of this Order, Plaintiff has failed to file an opposition. The Court concludes that "the public's interest in expeditious resolution of litigation," "the court's need to manage its docket," and "the risk of prejudice to the defendants" weigh in favor of granting the Motion for Judgment on the Second Amended Complaint for failure to file an opposition. Ghazali, 46 F.3d at 53.

CONCLUSION

IT IS HEREBY ORDERED that the Motion for Judgment on the Second Amended Complaint is GRANTED. (Doc. # 59). The Second Amended Complaint is DISMISSED without prejudice as to Defendants OneWest Bank, FSB, NDEX West, LLC, and Deutsche Bank National Trust Company.

WILLIAM Q. HAYES United States District Judge

20100723

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