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Garibay v. American Home Mortgage Corp.

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 ...


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