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Adelidia Cortez v. Ing Bank

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 13, 2011

ADELIDIA CORTEZ,
PLAINTIFF,
v.
ING BANK, FSB; INTERGRATED LENDER SERVICES; ALL PERSONS UNKNOWN CLAIMING TO HAVE LEGAL, EQUITABLE, LIEN, AND ESTATE AGAINST THE SUBJECT PROPERTY LOCATED AT 1503 DUBUQUE STREET, OCEANSIDE, CA 92058; DOES 1 TO 50 INCLUSIVE, DEFENDANTS.

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

ORDER

The matter before the Court is the Motion to Dismiss filed by Defendant ING Bank, FSB ("ING Bank"). (ECF No. 4).

BACKGROUND

On July 7, 2011, Plaintiff, proceeding pro se, initiated this action by filing a Complaint in San Diego County Superior Court. (ECF No. 1, Ex. A).

On July 12, 2011, ING Bank removed the action to this Court, alleging federal question jurisdiction. (ECF No. 1).

On July 27, 2011, ING Bank filed a Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 4).

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 Motion to Dismiss contains a proof of service indicating that Plaintiff was served with the Motion to Dismiss and the Memorandum of Points and Authorities in Support of the Motion to Dismiss. (ECF No. 5). The Motion to Dismiss and the Court's docket reflect that the hearing for the Motion to Dismiss was noticed for August 29, 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 defendant" 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 is GRANTED. (ECF No. 4). The Complaint is DISMISSED without prejudice as to Defendant ING Bank, FSB.

WILLIAM Q. HAYES United States District Judge

20110913

© 1992-2011 VersusLaw Inc.



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