United States District Court, S.D. California
WILLIAM Q. HAYES United States District Judge
matters before the Court are the motion to dismiss filed by
Defendants JP Morgan Chase Bank, N.A. and Mortgage Electronic
Registration Systems Inc. (ECF No. 4) and the motion to
dismiss filed by Defendant Quality Loan Service Corporation.
(ECF No. 5).
24, 2017, Plaintiff Mark Burchard filed a complaint in the
Superior Court for the County of San Diego against Defendants
Quality Loan Service Corporation (“Quality
Loan”), Mortgage Electronic Registration Systems, Inc.
(“MERS”), JP Morgan Chase Bank, N.A.
(“Chase”), and does 1 through 45. (ECF No.1 at
8-37). The Complaint alleges the following ten causes of
action: (1) violation of California Business and Professions
Code sections 17200 et seq; (2) violation of the California
Homeowner Bill of Rights; (3) violations of California Civil
Code section 2923.5; (4) negligence; (5) intentional
infliction of emotional distress; (6) slander of title; (7)
quiet title; (8) declaratory relief; (9) fraud in the
concealment; and (10) constructive fraud. Id. The
causes of action generally arise out of the alleged wrongful
foreclosure on property owned by Plaintiff. Plaintiff alleges
that Defendants “failed to contact Plaintiff in person
or by telephone to explore the option of avoiding foreclosure
as mandated by the express requirement of the California
Homeowner Bill of Rights and California Civil Code §
2923.5” prior to recording a Notice of Default on
Plaintiff's property. Id. at ¶ 6. Plaintiff
alleges that Defendants “cannot establish rightful
possession and proper transfer or proper endorsement of the
Promissory Note and the assignment of the Deed of Trust
herein.” Id. at ¶ 4. Specifically,
Plaintiff alleges that the foreclosure was improper because
the assignment of the deed of trust by MERS was invalid.
Id. ¶¶ 20-21.
September 1, 2017, this action was removed to this Court.
September 8, 2017, Defendants Chase and MERS filed a motion
to dismiss the complaint for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (ECF No. 4). Defendants contend that Plaintiff
fails to state a claim with respect to each cause of action
alleged in the complaint. Id.
September 29, 2017, Defendant Quality Loan filed a motion to
dismiss pursuant to Rules 12(b)(7) and 12(b)(6) of the
Federal Rules of Civil Procedure. (ECF No. 5). Defendant
contends that the complaint must be dismissed for failure to
join an indispensable party because Plaintiff has failed to
join Joy Burchard, “a co-obligor under the Promissory
Note and Loan Modification Agreement.” Id.
Defendant further contends that Plaintiff has failed to state
a claim with respect to each of the causes of action in the
record reflects that Plaintiff has not filed a response in
opposition to either of the motions to dismiss.
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, 53-54
(9th Cir. 1995) (affirming dismissal for failing to oppose a
motion to dismiss, based on a local rule providing that
“[t]he failure of the opposing party to file a
memorandum of points and authorities in opposition to any
motion shall constitute consent to the granting of the
motion”). 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.” CivLR 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) (quoting Morris v. Morgan Stanley &
Co., 942 F.2d 648, 652 (9th Cir. 1991)) (affirming
dismissal for failure to prosecute).
docket reflects that the notice of removal and motions to
dismiss were served on Plaintiff at his current address. The
docket reflects that Chase and MERS obtained a hearing date
of October 16, 2017 for their motion to dismiss. (ECF No. 4).
The docket reflects that Quality Loan obtained a hearing date
of November 6, 2017 for its motion to dismiss. (ECF No. 5).
Pursuant to the local rules, Plaintiff was to file any
response to the motions to dismiss no later than fourteen
days prior to the hearing dates. The docket reflects that
Plaintiff has failed to file any response to the motions as
required by Civil Local Rule 7.1.e.2. The Court construes
Plaintiff's failure to oppose the motions to dismiss as
“a consent to the granting of” the motions. CivLR
7.1(f)(3)(c). The Court further 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 motions to
dismiss for failure to file an opposition. Ghazali,
46 F.3d at 53. The motions to dismiss are granted. (ECF Nos.
4, 5). ///
HEREBY ORDERED that the motion to dismiss filed by Chase and
MERS and the motion to dismiss filed by Quality Loan are
GRANTED. (ECF Nos. 4, 5). The Complaint is dismissed without
prejudice. Plaintiff shall file any motion for leave to file
an amended complaint pursuant to Local Civil Rule 7.1 and
within thirty (30) days of the date this Order is issued. If