Ribail v. Bank of America NA et al

Filing 37

ORDER granting 35 Motion to Dismiss; this case is dismissed, Plaintiff shall take nothing, and the Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 2/13/17.(EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Raymond A Ribail,
Plaintiff,

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ORDER

v.

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No. CV-16-08263-PCT-JAT

Bank of America NA, et al.,

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Defendants.

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This case was filed on June 21, 2016, in the Southern District of New York. The

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case was transferred to the District of Arizona on November 10, 2016. On January 6,

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2017, Defendants moved to dismiss this case. The time to respond to this motion has

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expired and Plaintiff did not respond. All mail the Court has sent to Plaintiff since the

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November transfer has been returned as undeliverable.

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Local Rule of Civil Procedure 7.2(i) provides that if an “unrepresented party or

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counsel does not serve and file the required answering memoranda . . . such non-

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

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may dispose of the issue summarily.” LRCiv. 7.2(i). “Failure to follow a district court’s

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local rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.

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1995) (citing U.S. v. Warren, 601 F.2d 471, 474 (9th Cir. 1979)). “Although we construe

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pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.”

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Id. at 54 (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). “Before dismissing

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the action, the district court is required to weigh several factors: ‘(1) the public’s interest

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in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the

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risk of prejudice to the [party seeking dismissal]; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic sanctions.’” Id.

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at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first

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two of these factors favor the imposition of sanctions in most cases, while the fourth cuts

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against a default or dismissal sanction. Thus the key factors are prejudice and availability

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of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990).

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The dismissal factors in this case are similar to those present in Ghazali. In that

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case, the Ninth Circuit upheld summary dismissal of a 42 U.S.C. § 1983 action for the

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failure to follow a Nevada district court local rule. Ghazali, 46 F.3d at 53. The Nevada

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rule, like Local Rule 7.2(i), considered the failure to file a response to a motion to

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“constitute a consent to the granting of the motion.” Id. (quoting D. Nev. R. 140-6). The

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Court reasoned that the dismissal was proper because the pro se plaintiff was bound by

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the rules of procedure, and was given notice of the motion and ample time to respond. Id.

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at 54 (citing King, 814 F.2d at 567).

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Here, this case has been pending for 7 months; therefore, expeditious resolution

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favors dismissal. Also, the Court’s need to manage its docket favors dismissal because

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the Court has no other management option because Plaintiff has failed to maintain a

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current address with the Court. The risk of prejudice favors dismissal as Defendants

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continue to incur attorney’s fees and record keeping costs even though this Court has no

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ability to move this case forward in any way other than dismissal. The public policy

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favoring merits resolutions weighs against dismissal. Finally, less drastic sanctions are

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unavailable because any order to show cause or other sanction would simply be taking a

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round trip through the mail. Carey v. King, 856 F.2d 1439, 1440 -1441 (9th Cir. 1988).

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Thus, four of the five factors favor dismissal.

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Based on the foregoing,

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IT IS ORDERED that the motion to dismiss (Doc. 35) is granted; this case is

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dismissed, Plaintiff shall take nothing, and the Clerk of the Court shall enter judgment

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accordingly.

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Dated this 13th day of February, 2017.

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