Garibay v. American Home Mortgage Corp. et al

Filing 28

ORDER granting 27 Motion to Dismiss Plaintiff's Second Amended Complaint. The Second Amended Complaint is Dismissed without prejudice as to Defendant Wells Fargo Home Mortgage, Inc. Signed by Judge William Q. Hayes on 9/2/10. (lao)(copy of Order mailed to counsel for Defendant American Home Mortgage Corp.)

-CAB Garibay v. American Home Mortgage Corp. et al

Doc. 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 HAYES, Judge: 20 22 27). 23 24 25 (Doc. # 1). 26 On October 29, 2009, Defendant American Home Mortgage Corp. ("American") filed 27 a "Suggestion of Bankruptcy" with this Court. (Doc. # 8). The Suggestion of Bankruptcy 28 notified the Court that on August 6, 2007, American filed a voluntary petition with the United -109cv1460-WQH-CAB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

CYNTHIA GARIBAY, an individual, Plaintiff, vs. AMERICAN HOME MORTGAGE CORP., a New York Corporation, WELLS FARGO HOME MORTGAGE, INC., a California Corporation & DOES 1 through 20, Defendants.

CASE NO. 09cv1460-WQH-CAB ORDER

The matter before the Court is the Motion to Dismiss Plaintiff's Second Amended

21 Complaint filed by Defendant Wells Fargo Home Mortgage, Inc. ("Wells Fargo"). (Doc. # BACKGROUND On July 7, 2009, Plaintiff Cynthia Garibay initiated this action by filing a Complaint.

Dockets.Justia.com

1 States Bankruptcy Court of the District of Delaware. 2 On November 13, 2009, the Court issued an Order staying this action as to Defendant

3 American only. (Doc. # 11). 4 5 On December 1, 2009, Plaintiff filed a First Amended Complaint. (Doc. # 14). On March 26, 2010, the Court granted Wells Fargo's motion to dismiss the First

6 Amended Complaint. (Doc. # 20). 7 8 On July 9, 2010, Plaintiff filed a Second Amended Complaint. (Doc. # 26). On July 26, 2010, Wells Fargo filed the Motion to Dismiss the Second Amended

9 Complaint. (Doc. # 27). 10 11 DISCUSSION A district court may properly grant an unopposed motion pursuant to a local rule where

12 the local rule permits, but does not require, the granting of a motion for failure to respond. See 13 Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). Civil Local Rule 7.1 provides: "If an 14 opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that 15 failure may constitute a consent to the granting of a motion or other request for ruling by the 16 court." S.D. Cal. Civ. Local Rule 7.1(f)(3)(a). "Although there is ... a [public] policy favoring 17 disposition on the merits, it is the responsibility of the moving party to move towards that 18 disposition at a reasonable pace, and to refrain from dilatory and evasive tactics." In re Eisen, 19 31 F.3d 1447, 1454 (9th Cir. 1994) (affirming grant of motion to dismiss for failure to 20 prosecute); see also Steel v. City of San Diego, No. 09cv1743, 2009 WL 3715257, at *1 (S.D. 21 Cal., Nov. 5, 2009) (dismissing action pursuant to Local Rule 7.1 for plaintiff's failure to 22 respond to a motion to dismiss). 23 The docket reflects that Plaintiff, who is represented by counsel, was served with the

24 Motion to Dismiss the Second Amended Complaint. The Motion to Dismiss and the Court's 25 docket reflect that the hearing date of the Motion to Dismiss was August 30, 2010. Civil Local 26 Rule 7.1 provides: "each party opposing a motion ... must file that opposition ... with the clerk 27 ... not later than fourteen (14) calendar days prior to the noticed hearing." S.D. Cal. Civ. Local 28 Rule 7.1(e)(2). As of the date of this Order, Plaintiff has failed to file an opposition. The -209cv1460-WQH-CAB

1 Court concludes that "the public's interest in expeditious resolution of litigation," "the court's 2 need to manage its docket," and "the risk of prejudice to the defendants" weigh in favor of 3 granting the Motion to Dismiss for failure to file an opposition. Ghazali, 46 F.3d at 53. 4 5 CONCLUSION IT IS HEREBY ORDERED that the Motion to Dismiss Plaintiff's Second Amended

6 Complaint is GRANTED. (Doc. # 27). The Second Amended Complaint is DISMISSED 7 without prejudice as to Defendant Wells Fargo Home Mortgage, Inc. 8 IT IS FURTHER ORDERED that the Clerk of the Court shall administratively close

9 this case. This case shall be automatically reopened upon the dismissal of Defendant 10 American Home Mortgage Corp.'s bankruptcy petition or the filing of an order lifting the 11 bankruptcy stay. Defendant American Home Mortgage Corp. is ORDERED to notify the 12 Court in writing of any changes in the bankruptcy case relevant to this action, including but 13 not limited to a discharge or dismissal of the bankruptcy case. The Clerk of the Court shall 14 mail a copy of this Order to counsel for Defendant American Home Mortgage Corp., as listed 15 in the Suggestion of Bankruptcy. (Doc. # 8 at 2). 16 DATED: September 2, 2010 17 18 19 20 21 22 23 24 25 26 27 28 -309cv1460-WQH-CAB

WILLIAM Q. HAYES United States District Judge