Cahill et al v. Onewest Bank et al

Filing 26

ORDER GRANTING AS UNOPPOSED DEFENDANT ONEWEST BANK FSB'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT by Judge Patricia V. Trumbull granting 21 Motion to Dismiss; finding as moot 23 Motion to Appear by Telephone; finding as moot 25 Motion to Appear by Telephone; finding as moot 12 Motion to Dismiss (pvtlc2, COURT STAFF) (Filed on 11/9/2010)

Cahill et al v. Onewest Bank et al

Doc. 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) Plaintiffs, ) ) v. ) ) ) ONEWEST BANK formerly known as ) INDYMAC BANK, ET AL., ) ) Defendants. ) ___________________________________ ) KENNETH CAHILL, ET AL., Case No.: C 10-02781 PVT ORDER GRANTING AS UNOPPOSED DEFENDANT ONEWEST BANK FSB'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT [Docket No. 21]

On October 12, 2010, defendant OneWest Bank FSB moved to dismiss the second amended complaint pursuant to Rules 12(b)(6), 20 and 21, and noticed a hearing on the motion for November 16, 2010. Pursuant to Civ. L.R. 7-3, an opposition was due no later than October 26, 2010. To date, no opposition has been filed. On October 29, 2010, the court issued an order to show cause why the above motion should not be granted for failure to oppose it. ("October 29, 2010 Order to Show Cause"). Plaintiffs were ordered to respond to the order to show cause no later than November 2, 2010. To date, no response has been filed. Pursuant to Civ. L.R. 7-1(b), the motion is taken under submission and the hearing scheduled to be held on November 16, 2010 is vacated. Having reviewed the papers, IT IS HEREBY ORDERED that defendant OneWest Bank FSB's motion to dismiss the

ORDER, page 1
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second amended complaint is granted as unopposed.1 Here, plaintiffs have failed to comply with the Federal Rules of Civil Procedure, the civil local rules, and the October 29, 2010 Order to Show Cause. See Rule 41(b)(defendant may move to dismiss the action if plaintiff fails to prosecute or to comply with these rules or a court order). See also, Ferdik v. Bonzalet, 963 F.2d 1258, 1260 (9th Cir. 1992). In Ghazali v. Moran, the Ninth Circuit held that in exercising its discretion to dismiss an action for failing to comply with a district court's local rules or orders, the court is "required to weigh several factors: `(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.'" Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). The first and second factors favor dismissal. Plaintiffs did not oppose the motion to dismiss the second amended complaint and did not respond to the October 29, 2010 Order to Show Cause. Plaintiffs' failure to respond to the motion and the court's order undermines the court's ability to expeditiously resolve litigation and the court's need to manage its docket. The third factor favors dismissal. Plaintiffs have not proffered any excuse for their failure to oppose, or otherwise, respond to the motion to dismiss or the court's order. Defendant OneWest seeks an expeditious resolution of the litigation and plaintiffs' failure to respond delays a prompt resolution of the action. The fourth factor which favors disposition of the case on its merits, however, weighs against dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002)("Public policy favors disposition of cases on the merits. Thus, this factor weighs against dismissal."). The fifth factor favors dismissal. Plaintiffs failed to oppose, or otherwise, respond to, the motion to dismiss and the court's order. The October 29, 2010 Order to Show Cause expressly sought a response as to why the motion to dismiss should not be granted for a failure to oppose it. Plaintiffs did not respond. In balancing the factors set forth above, the court finds that dismissal is warranted and The holding of this court is limited to the facts and particular circumstances underlying the present motion. ORDER, page 2
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defendant OneWest's motion to dismiss the second amended complaint is granted. IT IS SO ORDERED. Dated: November 9, 2010 PATRICIA V. TRUMBULL United States Magistrate Judge

ORDER, page 3

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