The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT [DOC. # 18]; AND DENYING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S ORIGINAL COMPLAINT AS MOOT [DOC. # 5]
Pending before the Court is the motion to dismiss plaintiff's first
amended complaint filed by defendant Wells Fargo Bank, N.A.*fn1
("defendant") for failure to state a claim against defendant
upon which relief may be granted pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.*fn2 Plaintiff did
not file an opposition to the motion. After a careful review of
defendants' motion, this Court GRANTS defendant's unopposed motion to
dismiss and dismisses plaintiff's first amended complaint without
Plaintiff, appearing pro se, filed a complaint before the San Diego County Superior Court on September 8, 2010, seeking declaratory and injunctive relief, based on allegations stemming from foreclosure proceedings against property located at 7513 New Salem Street, San Diego, California. The complaint seeks relief against Wells Fargo based on claims for fraud, negligent misrepresentation, breach of written and implied contract, negligence, declaratory relief, quiet title, slander of title, violation of California's Rosenthal Fair Debt Collections Practices Act, and intentional infliction of emotional distress.
Defendant removed the complaint to this Court on September 27, 2010, on diversity grounds. On December 12, 2010, counsel Thomas J. Bayard substituted in as counsel for plaintiff. Plaintiff filed, on January 4, 2011, her first amended complaint, which is the operative pleading here, alleging causes of action for fraud, negligent misrepresentation and seeking declaratory and injunctive relief and to quiet title on the property at issue. The instant motion to dismiss was filed by defendant on January 12, 2011. No opposition to the motion was filed by plaintiff. This Court, on March 15, 2011, took the motion under submission without oral argument.
Defendant's unopposed motion to dismiss seeks dismissal of the action for failure to state a claim. The Ninth Circuit has held that a district court may properly grant a motion to dismiss as unopposed pursuant to a local rule where the local rule permits, but does not require the granting of a motion for failure to respond. See, generally, Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to timely file opposition papers). Civil Local Rule 7.1(f.3.c) expressly provides that "[i]f an opposing party fails to file the papers in the manner required by Local Rule 7.1(e.2), that failure may constitute a consent to the granting of that motion or other request for ruling by the court."
Prior to granting an unopposed motion for dismissal, the Court must weigh the following factors: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). The Ninth Circuit has recognized that the first and fourth factors cut in opposite directions. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (first factor always weighs in favor of dismissal); Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir. 1998) (fourth factor counsels against dismissal).
After a review of the record, this Court finds that the second factor weighs in favor of dismissal. As the court noted in Yourish, the routine noncompliance of litigants should not prevent the court from managing its docket. Yourish, 191 F. 3d 990. Plaintiff failed to comply with one of the most basic requirements of litigation and, to date, offers no excuse for failing to respond to defendant's motion to dismiss. The fact that plaintiff has yet to make any attempt to address the motion to dismiss also supports a finding of prejudice towards defendants and weighs in favor of dismissal. Finally, with respect to whether less drastic measures have been considered, in the interest of lessening the sanction imposed on plaintiff, the Court will grant defendant's motion to dismiss without prejudice.
Thus, this Court finds the factors weigh heavily in favor of granting defendant's motion to dismiss.
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Defendant's motion to dismiss plaintiff's original complaint [doc. # ...