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Diana M. Caringi v. Deutsche Bank National Trust Company

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 25, 2011

DIANA M. CARINGI,
PLAINTIFF,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, OCWEN LOAN SERVICING, LLC, US BANK HOME MORTGAGE, DOWNEY SAVINGS AND LOAN ASSOCIATION, FCI LENDER SERVICES, INC., DOES 1 TO 100, INCLUSIVE, DEFENDANT.

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

ORDER

On February 9, 2011, Plaintiff initiated this action by filing a Complaint in the San Diego County Superior which was removed to this Court on March 28, 2011. On April 1, 2010, a Motion to Dismiss was filed. (ECF No. 4). On April 4, 2011, an Amended Motion to Dismiss and a Motion to Expunge Lis Pendens was filed by Deutshe Bank National Trust Company and Ocwen Loan Servicing, LLC. (ECF No. 5). Defendants contend that: (1) Plaintiff's claims are not adequately plead; (2) Plaintiff's fraud claims are not pled with particularity; (3) Plaintiff's claims regarding "robo-signing" do not support any legal theory; and (4) Plaintiff's claims regarding the foreclosure sale are moot and fail for lack of an alleged ability to tender. To date, Plaintiff has not responded to the Motion to Dismiss or the Motion to Expunge Lis Pendens.

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)(c). "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 MMA (WVG), 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 Amended Motion to Dismiss and the Motion to Expunge Lis Pendens contains a proof of service indicating that Plaintiff was served with the Motion. (ECF No. 5 at 4). The Motion and the Court's docket reflect that the hearing for the Motion to Dismiss and Motion for Expungement of Lis Pendens was noticed for May 2, 2011. 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 Amended Motion to Dismiss and the Motion to Expunge Lis Pendens for failure to file an opposition. Ghazali, 46 F.3d at 53.

CONCLUSION

IT IS HEREBY ORDERED that the Amended Motion to Dismiss and the Motion to Expunge Lis Pendens is GRANTED. (ECF No. 5). The Complaint (ECF No. 1) is DISMISSED without prejudice as to Deutshe Bank National Trust Company and Ocwen Loan Servicing, LLC. The lis pendens is expunged.

WILLIAM Q. HAYES United States District Judge

20110725

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