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Garibay v. American Home Mortgage Corp.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 2, 2010

CYNTHIA GARIBAY, AN INDIVIDUAL, PLAINTIFF,
v.
AMERICAN HOME MORTGAGE CORP., A NEW YORK CORPORATION, WELLS FARGO HOME MORTGAGE, INC., A CALIFORNIA CORPORATION & DOES 1 THROUGH 20, DEFENDANTS.

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

ORDER

The matter before the Court is the Motion to Dismiss Plaintiff's Second Amended Complaint filed by Defendant Wells Fargo Home Mortgage, Inc. ("Wells Fargo"). (Doc. # 27).

BACKGROUND

On July 7, 2009, Plaintiff Cynthia Garibay initiated this action by filing a Complaint. (Doc. # 1).

On October 29, 2009, Defendant American Home Mortgage Corp. ("American") filed a "Suggestion of Bankruptcy" with this Court. (Doc. # 8). The Suggestion of Bankruptcy notified the Court that on August 6, 2007, American filed a voluntary petition with the United States Bankruptcy Court of the District of Delaware.

On November 13, 2009, the Court issued an Order staying this action as to Defendant American only. (Doc. # 11).

On December 1, 2009, Plaintiff filed a First Amended Complaint. (Doc. # 14).

On March 26, 2010, the Court granted Wells Fargo's motion to dismiss the First Amended Complaint. (Doc. # 20).

On July 9, 2010, Plaintiff filed a Second Amended Complaint. (Doc. # 26).

On July 26, 2010, Wells Fargo filed the Motion to Dismiss the Second Amended Complaint. (Doc. # 27).

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 Plaintiff, who is represented by counsel, was served with the Motion to Dismiss the Second Amended Complaint. The Motion to Dismiss and the Court's docket reflect that the hearing date of the Motion to Dismiss was August 30, 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 to Dismiss for failure to file an opposition. Ghazali, 46 F.3d at 53.

CONCLUSION

IT IS HEREBY ORDERED that the Motion to Dismiss Plaintiff's Second Amended Complaint is GRANTED. (Doc. # 27). The Second Amended Complaint is DISMISSED without prejudice as to Defendant Wells Fargo Home Mortgage, Inc.

IT IS FURTHER ORDERED that the Clerk of the Court shall administratively close this case. This case shall be automatically reopened upon the dismissal of Defendant American Home Mortgage Corp.'s bankruptcy petition or the filing of an order lifting the bankruptcy stay. Defendant American Home Mortgage Corp. is ORDERED to notify the Court in writing of any changes in the bankruptcy case relevant to this action, including but not limited to a discharge or dismissal of the bankruptcy case. The Clerk of the Court shall mail a copy of this Order to counsel for Defendant American Home Mortgage Corp., as listed in the Suggestion of Bankruptcy. (Doc. # 8 at 2).

WILLIAM Q. HAYES United States District Judge

20100902

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