Schneider v. Wells Fargo et al

Filing 8

ORDER Granting 7 Defendant's Unopposed Motion to Dismiss Without Prejudice and Vacating Hearing Date. Signed by Judge John A. Houston on 6/10/2013. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANGELA SCHNEIDER,
Plaintiff,

v.

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WELLS FARGO, STEAMBOAT
PARTNERS, LLC,

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Defendants.

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Civil No. 13cv0565 JAH(DHB)
ORDER GRANTING
DEFENDANT’S UNOPPOSED
MOTION TO DISMISS [DOC. # 7]
AND VACATING HEARING DATE

INTRODUCTION

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Pending before the Court is the motion to dismiss filed by defendant Wells Fargo

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Bank, N.A. (erroneously sued as Wells Fargo) (“defendant”) for failure to state a claim

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against defendant upon which relief may be granted pursuant to Rule 12(b)(6) of the

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Federal Rules of Civil Procedure. Plaintiff did not file an opposition to the motion. After

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a careful review of defendant’s motion, this Court GRANTS defendant’s unopposed

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motion to dismiss and vacates the date set for hearing the motion.
BACKGROUND

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Plaintiff, appearing pro se, filed the instant complaint on March 11, 2013, seeking

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damages based on defendant’s alleged violations of the Fair Credit Reporting Act, 15

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U.S.C. § 1681, et seq., the Federal Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.

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and California’s Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788-

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1788.33.

See Doc. # 1 at 1. Defendant filed the instant motion to dismiss plaintiff’s

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complaint on May 2, 2013. Doc. # 7. As of the date of this order, no opposition or other

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response has been filed by plaintiff.
DISCUSSION

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Defendant’s unopposed motion to dismiss seeks dismissal of the action for failure

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to state a claim. The Ninth Circuit has held that a district court may properly grant a

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motion to dismiss as unopposed pursuant to a local rule where the local rule permits, but

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does not require the granting of a motion for failure to respond. See, generally, Ghazali v.

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Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to

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timely file opposition papers). Civil Local Rule 7.1(f.3.c) expressly provides that “[i]f an

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opposing party fails to file the papers in the manner required by Local Rule 7.1(e.2), that

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

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by the court.”

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Prior to granting an unopposed motion for dismissal, the Court must weigh the

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following factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the

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court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the

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public policy favoring disposition of cases on their merits; and (5) the availability of less

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drastic sanctions.”

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1421, 1423 (9th Cir. 1986)). The Ninth Circuit has recognized that the first and fourth

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factors cut in opposite directions. See Yourish v. California Amplifier, 191 F.3d 983, 990

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(9th Cir. 1999) (first factor always weighs in favor of dismissal); Hernandez v. City of El

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Monte, 138 F.3d 393, 401 (9th Cir. 1998) (fourth factor counsels against dismissal).

Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d

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After a review of the record, this Court finds that the second factor weighs in favor

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of dismissal. As the court noted in Yourish, the routine noncompliance of litigants should

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not prevent the court from managing its docket. Yourish, 191 F. 3d 990. Plaintiff failed

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to comply with one of the most basic requirements of litigation and, to date, offers no

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excuse for failing to respond to defendants’ motion to dismiss. The fact that plaintiff has

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yet to make any attempt to address the motion to dismiss also supports a finding of

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prejudice towards defendant and weighs in favor of dismissal.
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Finally, with respect to

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whether less drastic measures have been considered, in the interest of lessening the

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sanction imposed on plaintiff, the Court will grant defendant’s motion to dismiss without

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prejudice. Thus, this Court finds the factors weigh heavily in favor of granting defendant’s

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motion to dismiss.
CONCLUSION AND ORDER

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Defendant’s motion to dismiss [doc. # 7] is GRANTED;

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2.

The claims against defendant Wells Fargo Bank, N.A. contained in the
instant complaint are DISMISSED without prejudice; and

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3.
Dated:

The date of June 17, 2013 set for hearing defendant’s motion is VACATED.
June 10, 2013

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JOHN A. HOUSTON
United States District Judge

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