Vercauteren v. Wells Fargo Bank NA

Filing 10

ORDER granting 5 Defendant's Motion to Dismiss. The claims against Defendant are dismissed. Defendant's Motion for Summary Disposition 9 is granted. The clerk is directed to vacate all pending hearings and terminate this action. Signed by Judge David G Campbell on 10/24/11.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Vicky Lynn Vercauteren,
Plaintiff,

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vs.

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Wells Fargo Bank, N.A.,
Defendant.

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No. CV-11-1705-PHX-DGC
ORDER

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Defendant Wells Fargo Bank, N.A. has filed a motion to dismiss. Doc. 5. Defendant

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has also filed a motion for summary disposition. Doc. 9. For the reasons set forth below, the

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Court will grant the motions.

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I.

Background.

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Plaintiff commenced this action by filing a complaint against Defendant in state court

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on July 21, 2011. Defendant removed the action to this Court on August 26, 2011. Doc. 1.

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Defendant filed a motion to dismiss on September 2, 2011 pursuant to Rule 12(b)(6)

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of the Federal Rules of Civil Procedure. Doc. 5. Defendant argues that Plaintiff has failed

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to state a claim upon which relief can be granted. Defendant seeks dismissal of the complaint

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with prejudice. Id.

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II.

Failure to Respond.

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Pursuant to Local Rule 7.2(c), Plaintiff was required to file a response to the motion

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by September 20, 2011. LRCiv 7.2(c); see Fed. R. Civ. P. 6(a). Plaintiff has not responded

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to the motion. The Court advised Plaintiff by order dated September 26, 2011 that Plaintiff

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must file a response to the motion to dismiss on or before October 7, 2011. Plaintiff failed

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to respond to the motion to dismiss.

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Local Rule 7.2(i) provides that if a defendant files a motion to dismiss and the plaintiff

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“does not serve and file the required answering memoranda . . . such non-compliance may

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be deemed a consent to the . . . granting of the motion and the Court may dispose of the

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motion summarily.” LRCiv 7.2(i). Before dismissing a case for failure to prosecute or

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follow a local rule, the Court must weigh five factors: (1) the public’s interest in expeditious

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resolution of litigation, (2) the Court’s need to manage its docket, (3) the risk of prejudice

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to the defendant, (4) the public policy favoring disposition of cases on their merits, and (5)

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the availability of less drastic sanctions. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.

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1995) (citing Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).

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The first two factors favor dismissal. Plaintiff was served with Defendant’s motion

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on September 2, 2011. See Doc. 5 at 10. Plaintiff has had ample time to respond to the

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motion, but has failed to do so. Because the Court and the public have a strong interest in

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judicial efficiency and the prompt resolution of litigation, Plaintiff’s failure to prosecute this

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action weighs in favor of dismissal. The risk of prejudice to Defendant also weighs in favor

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of dismissal. Defendants forced to incur expenses and defend themselves in court are

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prejudiced by a plaintiff’s failure to respond to motions or prosecute the case in a timely and

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efficient manner. The fourth factor, as always, weighs against dismissal. As for the fifth

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factor, the Court concludes that a dismissal with prejudice would be unduly harsh. Dismissal

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without prejudice is, however, an appropriate alternative sanction in light of Plaintiff’s

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complete failure to prosecute this action since its removal to this Court. Because the overall

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five-factor analysis favors dismissal, the Court will deem Plaintiff’s lack of response a

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consent to the granting of Defendant’s motions. See LRCiv 7.2(i); Ghazali, 46 F.3d at 54

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(holding that district court did not err in summarily granting the defendants’ motion to

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dismiss pursuant to a local rule where the plaintiff had time to respond to motion but failed

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to do so).

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IT IS ORDERED:

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Defendant’s motion to dismiss (Doc. 5) is granted. The claims against
Defendant are dismissed.

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2.

Defendant’s motion for summary disposition (Doc. 9) is granted.

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3.

The clerk is directed to vacate all pending hearings and terminate this

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action.
DATED this 24th day of October, 2011.

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