Salarda et al v. Aegis Wholesale Corporation et al

Filing 10

ORDER: The Motion to Dismiss filed by Defendant Commonwealth Land Title (Doc. 5 ) is GRANTED, and the Motion to Dismiss filed by Defendants Alternative Loan Trust 2007-OA8, Michael J. Ballmann, CWalt, Inc., Countrywide Home Loans Servicing LP, Count rywide Home Loans, Inc., Christine Daymude, None PSA Custodian, Recontrust Company, and The Bank of New York (Doc. 6 ) is GRANTED. The Complaint is DISMISSED without prejudice as to Defendants Commonwealth Land Title, Alternative Loan Trust 2007-OA8 , Michael J. Ballmann, CWalt, Inc., Countrywide Home Loans Servicing LP, Countrywide Home Loans, Inc., Christine Daymude, None PSA Custodian, Recontrust Company, and The Bank of New York. Signed by Judge William Q. Hayes on 9/11/2012. (Per Order, this Order was mailed to Plaintiffs at their last known addresses.) (mdc)

FILED'

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[ SEP 11 2012

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CLERK, U.S. DISTAlC- ­
SOUTHERN DISTRICT

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILFREDO E. SALARDA JR. And
MARY JEAN T. SALARDA, individuals
on behalf of themselves and all others
similarly situated,
vs.

CASE NO. 12cv0700-WQH-BGS
ORDER

Plaintiffs,

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AEGIS WHOLESALE CORPORATION,
as original lender; COMMONWEALTH
LAND TITLE, as original trustee;
ALLIANCE TITLE COMPANY, title
company; COUNTRYWIDE HOME
LOANS SERVICING LP, as PSA master
server; COUNTRYWIDE HOME
LOANS INC., as PSA Sponsor and Seller;
CWAL T, INC., as PSA Depositor; THE
BANK OF NEW YORK, as PSA Trustee;
NONE PSA Custodian; ALTERNATIVE
LOAN TRUST 2007-0A8, as PSA Trust
Issuing Entity; RECONTRUST
COMPANY, as Foreclosing Trustee;
CHRISTINE DAYMUDE, as Assistant
Secretary ofMERS, INC., MICHAEL J.
BALLMANN, Notary of the Assignment
of Deed of Trust; and DOES 1 through
100, inclusive,

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Defendants.

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HAYES, Judge:

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The matters before the Court are the Motion to Dismiss filed by Defendant
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Commonwealth Land Title (ECF No.5) and the Motion to Dismiss filed by Defendants
Alternative Loan Trust 2007-0A8, Michael J. BaUmann, CWalt, Inc., Countrywide Home
Loans Servicing LP, Countrywide Home Loans, Inc., Christine Daymude, None PSA
Custodian, Recontrust Company, and The Bank of New York (ECF No.6).
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12cv0700·WQH-BGS

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BACKGROUND

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On March 22, 2012, Plaintiffs, proceeding pro se, initiated this action by filing a

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Complaint. (ECF No.1). On August 7,2012, Defendant Commonwealth Land Title filed a

4 Motion to Dismiss. (ECF No.5). On August 8, 2012, Defendants Alternative Loan Trust
5 2007-0A8, Michael J. BaUmann, CWalt, Inc., Countrywide Home Loans Servicing LP,
6 /I Countrywide Home Loans, Inc., Christine Daymude, None PSA Custodian, Recontrust
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Company, and The Bank of New York filed a Motion to Dismiss. (ECF No.6).
Plaintiffs have not filed an opposition to either of the Motions to Dismiss.
DISCUSSION

l O A district court may properly grant an unopposed motion pursuant to a local rule where
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the local rule permits, but does not require, the granting ofa motion for failure to respond.

See

12 Ghazali v. Moran, 46 F.3d 52,54 (9th Cir. 1995). Civil Local Rule 7.1 provides that "each
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party opposing a motion ... must file that opposition ... with the clerk ... not later than fourteen

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(14) calendar days prior to the noticed hearing." S.D. Cal. Civ. Local Rule 7.l(e)(2). "If an

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opposing party fails to file the papers in the manner required by Civil Local Rule 7 .1.e.2, that

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failure may constitute a consent to the granting of a motion or other request for ruling by the

17 II court." S.D. Cal. Civ. Local Rule 7. 1(f)(3)(a). "Before dismissing the action, the district court
18 II is required to weigh several factors: (1) the public's interest in expeditious resolution of
19 II litigation; (2) the court's need to manage its docket; (3) the risk ofprejudice to the defendants;
20 II (4) the public policy favoring disposition ofcases oftheir merits; and (5) the availability ofless
21 II drastic sanctions." Ghazali, 46 F.3d at 53 (quotations omitted).
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"Although there is ... a [public] policy favoring disposition on the merits, it is the

23 II responsibility ofthe moving party to move towards that disposition at a reasonable pace, and
24 II to refrain from dilatory and evasive tactics." In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994)
25 II (affirming grant of motion to dismiss for failure to prosecute); see also Steel v. City o/San

2611 Diego, No. 09cv1743, 2009 WL 3715257, at *1 (S.D. Cal., Nov. 5,2009) (dismissing action
2711 pursuant to Local Rule 7.1 for plaintiff's failure to respond to a motion to dismiss).
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12cv0700-WQH-BGS

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Both Motions to Dismiss in this case contain proofs ofservice indicating that Plaintiffs

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were served with the respective motions. (ECF Nos. 5-3, 6 at 34-35). The Motions to Dismiss

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reflect that the hearings for both motions were noticed for September 10, 2012. As ofthe date

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ofthis Order, Plaintiffs have failed to file any opposition to the Motions to Dismiss. The Court

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concludes that "the public's interest in expeditious resolution of litigation," "the court's need

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to manage its docket," and '"the risk of prejudice to the defendant" weigh in favor ofgranting

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the Motions to Dismiss on the grounds that Plaintiffs have failed to file any opposition.

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Ghazali, 46 F.3d at 53.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss filed by Defendant

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Commonwealth Land Title (ECF No.5) is GRANTED, and the Motion to Dismiss filed by

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Defendants Alternative Loan Trust2007-0A8,MichaeIJ. BaUmann, CWalt, Inc., Countrywide

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Home Loans Servicing LP, Countrywide Home Loans, Inc., Christine Daymude, None PSA

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Custodian, Recontrust Company, and The Bank of New York (ECF No.6) is GRANTED.

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The Complaint is DISMISSED without prejudice as to Defendants Commonwealth

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Land Title, Alternative Loan Trust 2007-0A8, Michael J. BaUmann, CWalt, Inc., Countrywide

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Home Loans Servicing LP, Countrywide Home Loans, Inc., Christine Daymude, None PSA

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Custodian, Recontrust Company, and The Bank of New York.

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The Clerk ofthe Court is instructed to mail a copy ofthis Order to Plaintiffs at their last

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DATED:

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9/1!/!'l-

WILLIAM Q. HA
United States District Judge

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12cv0700-WQH-BGS