Locsin et al v. Quick Loan Funding et al

Filing 7

ORDER Granting 4 Defendants' Motion to Dismiss: The Moving Defendants motion to dismiss is GRANTED as unopposed. Signed by Judge M. James Lorenz on 8/1/2009. (mjj)

1 2 3 4 5 6 7 8 9 10 11 ALBERTO LOCSIN et al., 12 13 v. 14 QUICK LOAN FUNDING, et al., 15 16 17 Defendants. Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) Civil No. 09cv153-L(RBB) ORDER GRANTING DEFENDANTS' MOTION TO DISMISS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

In this mortgage fraud action, Defendants Countrywide Home Loans, Inc.

18 ("Countrywide") and Mortgage Electronic Registration Systems, Inc. ("MERS," collectively 19 "Moving Defendants") filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 20 12(b)(6). Plaintiff did not oppose the motion. The Moving Defendants' motion is GRANTED 21 as unopposed. 22 "If an opposing party fails to file papers in the manner required by Civil Local Rule

23 7.1(e)(2), that failure may constitute a consent to the granting of a motion or other request for 24 ruling by the court." Civ. Loc. R. 7.1(f)(3). "Failure to follow a district court's local rules is a 25 proper ground for dismissal." Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (dismissal of a 26 pro se prisoner's complaint pursuant to local rule for failure to file an opposition to a motion to 27 dismiss). 28 / / / / /
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"Before dismissing the action, the district court is required to weigh several factors: (1)

2 the public's interest in expeditious resolution of litigation; (2) the court's need to manage its 3 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 4 cases of their merits; and (5) the availability of less drastic sanctions." Id. (internal quotation 5 marks and citations omitted). "Although it is preferred, it is not required that the district court 6 make explicit findings in order show that it has considered these factors . . .." Yourish v. Cal. 7 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th 8 Cir. 1992). 9 The court is mindful that "[p]ublic policy favors disposition of cases on the merits,"

10 which weighs against dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 11 Nevertheless, dismissal is appropriate in cases where other factors support it. See, e.g., id. at 12 643; Yourish, 191 F.3d at 990, 992. 13 "The public's interest in expeditious resolution of litigation always favors dismissal."

14 Yourish, 191 F.3d at 990. Furthermore, "[i]t is incumbent upon the Court to manage its docket 15 without being subject to routine noncompliance of litigants such as" Plaintiff in this case. See 16 Pagtalunan, 291 F.3d at 642. This factor therefore favors dismissal. Next, "the risk of prejudice 17 to the defendant is related to plaintiff's reason for defaulting in failing to timely" comply with 18 the due dates established by local rules. See Yourish, 191 F.3d at 991. Plaintiffs' opposition was 19 due four and a half months ago, on March 30, 2009. Consistent with the practice in numerous 20 other cases, see infra, Plaintiffs, through their counsel, to date have not filed an opposition or a 21 notice of non-opposition, and have not provided any explanation at all for their delay. 22 "Unnecessary delay inherently increases the risk that witnesses' memories will fade and 23 evidence will become stale." Pagtalunan, 291 F.3d at 643. The prejudice factor, supported by 24 unexplained and lengthy delay, also favors dismissal in this case. 25 This case does not present an innocent circumstance of a forgetful counsel. Plaintiffs'

26 counsel has developed a habit of not responding to motions to dismiss. In addition to the present 27 case, he has followed this habit in numerous cases pending in this District, three of which were 28 assigned to the undersigned. See, e.g., Bartolome v. Downey Savings & Loan, 08cv1777 LAB
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1 (WMC); Uribe v. Countrywide Financial, 08cv1982 L (NLS); Uribe v. MorgageIT, 08cv1983 L 2 (NLS); Ajero v. Aegis Wholesale Corp., 08cv2002 W (JMA); Bantog v. Downey Savings & 3 Loan, 08cv2212 MMA (POR); Cataulin v. Washington Mutual Bank, 08cv2419 JM (NLS); Silva 4 v. US Bank, 09cv36 JAH (BLM); Rosales v. Downey Savings & Loan, 09cv39 WQH (AJB); 5 Hernandez v. Downey Savings & Loan, 09cv40 JAH (JMA); Floyd v. Millennium Mortgage 6 Corp., 09cv115 BEN (NLS); Andrade v. Wachovia Mortgage, 09cv377 JM (WMC). In each of 7 these eleven cases, the court was put to the task of reviewing the complaint and a motion to 8 dismiss without an opposition from the plaintiff. In the present case individually and in all of the 9 listed cases cumulatively, counsel's bad habit has interfered with and delayed the court's docket, 10 siphoning the court's time and resources away from cases where the litigants see it fit to devote 11 enough attention to provide the court with the benefit of their arguments when substantive 12 motions are filed against their interests. Given the persistence of this practice, the court finds 13 that yet again offering counsel a less drastic alternative, such as considering the merits of the 14 Moving Defendants' motion without the benefit of Plaintiffs' argument in opposition, would 15 serve only to encourage the bad habit and consume more of the court's time and resources which 16 could have been devoted to other cases on its docket. See Pagtalunan, 291 F.3d at 643. 17 18 19 20 DATED: August 18, 2009 21 22 23 COPY TO: M. James Lorenz United States District Court Judge The Moving Defendants' motion to dismiss is GRANTED as unopposed. IT IS SO ORDERED.

HON. RUBEN B. BROOKS 24 UNITED STATES MAGISTRATE JUDGE 25 ALL PARTIES/COUNSEL 26 27 28
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