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Juan Rodriguez v. Bank of America

November 22, 2011

JUAN RODRIGUEZ,
PLAINTIFFS,
v.
BANK OF AMERICA, ORGANIZED AND EXISTING (RE: DOCKET NO. 5) UNDER LAWS OF THE UNITED STATES, RECONTRUST COMPANY, N.A., ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF TEXAS,
DEFENDANTS.



The opinion of the court was delivered by: Paul S. Grewal United States Magistrate Judge

United States District Court For the Northern District of California

ORDER GRANTING MOTION TO DISMISS

In this action challenging the pending foreclosure on his home, pro se plaintiff Juan Rodriguez ("Rodriguez") alleges that Defendants Bank of America and Recontrust Company, N.A. 21 ("Defendants") did not comply with a number of requirements related to the Deed of Trust and 22 Note. Rodriguez seeks quiet title, injunctive relief, and declaratory relief. 23

On September 8, 2011, Defendants moved to dismiss all claims pursuant to Fed. R. Civ. P. 12(b)(6). A hearing on Defendants' motion was set for October 18, 2011. Under Civ. L.R. 7-3, Rodriguez had to submit his opposition, or statement of non-opposition, to Defendants' motion 26 within fourteen days, or by September 22, 2011. Rodriguez did not file any such document by the 27 deadline. On October 4, 2011, Defendants filed a notice with the court that Rodriguez had not 28 opposed their motion. As a result, the court vacated the October 18 hearing date and took Defendants' motion under submission based solely on the moving papers. As of this date, 2 Rodriguez has not filed any response to Defendants' motion to dismiss. Having considered 3

Defendants' briefs and for the reasons below, the court concludes that dismissal is warranted, but 4 without prejudice and with leave to amend. 5

I.LEGAL STANDARD

A. Dismissal for Failure to Oppose a Motion

Failure to follow a district court's local rules is a proper ground for dismissal.*fn1 In 8 considering dismissal, the district court must weigh five factors: "'(1) the public interest in 9 expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of 10 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 11 (5) the availability of less drastic sanctions.'"*fn2

In this district, the failure to oppose a motion 12 pending before the court within the time allotted by the local rules may result in the imposition of 13 sanctions, including dismissal of the case.*fn3

B. Dismissal under Fed. R. Civ. P. 12(b)(6)

Pursuant to Rule 12(b)(6), a complaint may be dismissed against a defendant for failure to 16 state a claim upon which relief may be granted against that defendant. A complaint must have 17 sufficient factual allegations to "state a claim to relief that is plausible on its face."*fn4 A claim is 18 facially plausible "when the pleaded factual content allows the court to draw the reasonable 19 inference that the defendant is liable for the misconduct alleged."*fn5

When evaluating a Rule 12(b)(6) motion, the court must accept all material allegations in 2 the complaint as true and construe them in the light most favorable to the non-moving party. The 3 court is not required to accept "legal conclusions cast in the form of factual allegations if those 4 conclusions cannot reasonably be drawn from the facts alleged." Further, the court need not accept 5 as true allegations that contradict matters that are either subject to judicial notice or attached as 6 exhibits to the complaint. 7

Pro se complaints are held to "less stringent standards than formal pleadings drafted by 8 lawyers."*fn6 The court "has an obligation to construe the pleadings liberally and to afford the 9 [plaintiff] the benefit of any doubt".*fn7 "However, pro se pleadings must still allege facts sufficient to 10 allow a reviewing court to determine whether a claim has been stated."*fn8 "Dismissal with prejudice and without ...


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