Metcalf v. Select Portfolio Servicing, Inc.

Filing 7

ORDER granting 4 Motion to Dismiss Plaintiff's Complaint. Plaintiff's Complaint is dismissed without prejudice. Signed by Judge Michael M. Anello on 5/9/2011. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN METCALF,

CASE NO. 11-CV-563 MMA (POR)
Plaintiff,

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ORDER GRANTING DEFENDANT
SELECT PORTFOLIO
SERVICING INC.’S MOTION TO
DISMISS

vs.
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SELECT PORTFOLIO SERVICING, INC.,
[Doc. No.4]

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Defendant.

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Before the Court is Defendant Select Portfolio Servicing, Inc.’s (“SPS”) motion to dismiss
Plaintiff John Metcalf’s (“Plaintiff) Complaint. SPS moves to dismiss under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, or in the alternative,
a motion under Rule 12(e) for an order requiring Plaintiff provide a more definite statement. [Doc.
No. 4.] For the following reasons, the Court GRANTS SPS’s motion to dismiss.
BACKGROUND
Plaintiff filed the Complaint in state court, alleging violations of the federal Real Estate
Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq., Fair Credit Reporting Act, 15 U.S.C.
§ 1681 et seq., and California’s Consumer Credit Reporting Agencies Act, Cal. Civ. Code § 1785.1
et seq. [Doc. No. 1.] Plaintiff alleges, inter alia, SPS failed to respond to a purported Qualified
Written Request under RESPA and that SPS reported negative information to credit bureaus. [Id.]
On March 22, 2011, SPS removed the action to this Court. [Id.] On March 29, 2011, SPS filed
the present motion to dismiss, accompanied with a request for judicial notice. [Doc. No. 4] Under
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Local Civil Rule 7.1(e)(2), Plaintiff’s response was due by April 26, 2011. Plaintiff did not file a

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response to SPS’s motion. The Court took this matter under submission and vacated the hearing

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scheduled for May 10, 2011 pursuant to Civil Local Rule 7.1.d.1.

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DISCUSSION

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A district court may properly grant an unopposed motion to dismiss pursuant to a local rule

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where the local rule permits, but does not require, the granting of a motion for failure to respond. See,

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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). In exercising its discretion to dismiss an action for

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failing to comply with a district court’s local rules, a court is “required to weigh several factors: ‘(1)

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

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(3) the risk of prejudice to the defendant[]; (4) the public policy favoring disposition of cases on their

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

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Local Civil Rule 7.1(f)(3)(c) provides that “[i]f an opposing party fails to file papers in the

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manner required by Local Rule 7.1(e)(2), that failure may constitute a consent to the granting of that

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motion or other request for ruling by the court.” Plaintiff was required to file his response in

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opposition or statement of non-opposition on or before April 26, 2011. To date, Plaintiff has not

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responded. Plaintiff’s failure to comport with this Court’s filing requirements impede the Court’s

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ability to expedite resolution of this action. Such non-compliance inherently delays resolution of the

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case and insures to the detriment of the public. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.

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2002). Thus, the first and second factors weigh in favor of dismissal.

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The third factor “is related to the strength of the plaintiff’s excuse for the default, if any.” Saba

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v. Caplan, 2010 WL 4235473 *1 (N.D. Cal. Oct.21, 2010); Yourish v. California Amplifier, 191 F.3d

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983, 991 (9th Cir. 1999). Plaintiff does not offer any “excuse” for his non-compliance, nor is any

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apparent from the record. Thus, the third factor weighs in favor of dismissal.

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As to the fourth factor, public policy generally favors disposition of cases on their merits. See

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e.g., Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). This policy lends little

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support, however, to a party responsible for moving a case forward but whose conduct impedes

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progress in that direction. See In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994). A case cannot move

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toward resolution on the merits when Plaintiff fails to defend his case against a Rule 12(b)(6) and (e)
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motion.

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Finally, the availability of less drastic sanctions does not necessitate such sanctions be

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employed here. Because at least three of the factors strongly support dismissal, on balance, dismissal

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is an appropriate sanction in this case. See Hernandez v. City of El Monte, 138 F.3d 393 (9th Cir.

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1998). In sum, after weighing the relevant Ghazali factors, the Court exercises its discretion and finds

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Plaintiff’s failure to respond constitutes consent to granting SPS’s motion to dismiss. Based on such

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grounds, consideration of SPS’s request for judicial notice is unnecessary

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CONCLUSION
Accordingly, the Court GRANTS SPS’s Motion to Dismiss Plaintiff’s Complaint. [Doc. No.
4.] Plaintiff’s Complaint is DISMISSED without prejudice.
IT IS SO ORDERED.

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DATED: May 9, 2011
Hon. Michael M. Anello
United States District Judge

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