Chen et al v. PMC Bancorp et al

Filing 63

ORDER: The (Doc. # 59 ) Motion for Judgment on the Second Amended Complaint is granted. The Second Amended Complaint is dismissed without prejudice as to Defendants OneWest Bank, FSB, NDEX West, LLC, and Deutsche Bank National Trust Company. Signed by Judge William Q. Hayes on 7/23/2010. (mdc)

-CAB Chen et al v. PMC Bancorp et al

Doc. 63

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 YUEH CHEN and CHEN C. WU, individuals, vs. PMC BANCORP, a California corporation, 01HOMELOAN, ONE WEST BANK, FSB, FIDELITY NATIONAL TITLE COMPANY, NDEX WEST, LLC, DEUTSCHE BANK NATIONAL TRUST COMPANY, and DOES 1 through 20, HAYES, Judge: The matter before the Court is the Motion for Judgment on the Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(c), Or, Alternatively, Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 ("Motion for Judgment on the Second Amended Complaint"), filed by Defendants OneWest Bank, FSB, NDEX West, LLC, and Deutsche Bank National Trust Company ("OneWest Defendants"). (Doc. # 59). BACKGROUND On December 3, 2009, Plaintiffs initiated this action by filing a Complaint in this Court. (Doc. # 1). The Complaint asserted various causes of action related to a loan transaction. On February 26, 2010, Plaintiffs filed a First Amended Complaint "as a matter of course" pursuant to Federal Rule of Civil Procedure 15(a). (Doc. # 24). On March 17, 2010, the OneWest Defendants filed a motion for judgment on the -109cv2704-WQH-BLM

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
CASE NO. 09cv2704-WQH-BLM ORDER

Plaintiffs,

Defendants.

Dockets.Justia.com

1 pleadings. (Doc. # 30). 2 On April 20, 2010, Plaintiffs filed motion for leave to file a second amended complaint.

3 (Doc. # 38). 4 On May 28, 2010, the Court granted the motion for leave to file a second amended

5 complaint and denied the motion for judgment on the pleadings. (Doc. # 56). On June 4, 6 2010, Plaintiff filed the Second Amended Complaint. (Doc. # 57). 7 On June 10, 2010, the OneWest Defendants filed the Motion for Judgment on the

8 Second Amended Complaint. (Doc. # 59). 9 10 DISCUSSION A district court may properly grant an unopposed motion pursuant to a local rule where

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

23 the Motion for Judgment on the Second Amended Complaint. The Motion for Judgment on 24 the Second Amended Complaint and the Court's docket reflect that the hearing for the Motion 25 for Judgment on the Second Amended Complaint was noticed for July 19, 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 -209cv2704-WQH-BLM

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 for Judgment on the Second Amended Complaint for failure to file an 4 opposition. Ghazali, 46 F.3d at 53. 5 6 CONCLUSION IT IS HEREBY ORDERED that the Motion for Judgment on the Second Amended

7 Complaint is GRANTED. (Doc. # 59). The Second Amended Complaint is DISMISSED 8 without prejudice as to Defendants OneWest Bank, FSB, NDEX West, LLC, and Deutsche 9 Bank National Trust Company. 10 DATED: July 23, 2010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -309cv2704-WQH-BLM

WILLIAM Q. HAYES United States District Judge