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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ANGELA SCHNEIDER, Plaintiff, v. 13 WELLS FARGO, STEAMBOAT PARTNERS, LLC, 14 Defendants. 15 ) ) ) ) ) ) ) ) ) ) Civil No. 13cv0565 JAH(DHB) ORDER GRANTING DEFENDANT’S UNOPPOSED MOTION TO DISMISS [DOC. # 7] AND VACATING HEARING DATE INTRODUCTION 16 17 Pending before the Court is the motion to dismiss filed by defendant Wells Fargo 18 Bank, N.A. (erroneously sued as Wells Fargo) (“defendant”) for failure to state a claim 19 against defendant upon which relief may be granted pursuant to Rule 12(b)(6) of the 20 Federal Rules of Civil Procedure. Plaintiff did not file an opposition to the motion. After 21 a careful review of defendant’s motion, this Court GRANTS defendant’s unopposed 22 motion to dismiss and vacates the date set for hearing the motion. BACKGROUND 23 24 Plaintiff, appearing pro se, filed the instant complaint on March 11, 2013, seeking 25 damages based on defendant’s alleged violations of the Fair Credit Reporting Act, 15 26 U.S.C. § 1681, et seq., the Federal Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. 27 and California’s Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788- 28 1788.33. See Doc. # 1 at 1. Defendant filed the instant motion to dismiss plaintiff’s 13cv0565 1 complaint on May 2, 2013. Doc. # 7. As of the date of this order, no opposition or other 2 response has been filed by plaintiff. DISCUSSION 3 4 Defendant’s unopposed motion to dismiss seeks dismissal of the action for failure 5 to state a claim. The Ninth Circuit has held that a district court may properly grant a 6 motion to dismiss as unopposed pursuant to a local rule where the local rule permits, but 7 does not require the granting of a motion for failure to respond. See, generally, Ghazali v. 8 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to 9 timely file opposition papers). Civil Local Rule 7.1(f.3.c) expressly provides that “[i]f an 10 opposing party fails to file the papers in the manner required by Local Rule 7.1(e.2), that 11 failure may constitute a consent to the granting of that motion or other request for ruling 12 by the court.” 13 Prior to granting an unopposed motion for dismissal, the Court must weigh the 14 following factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 15 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 16 public policy favoring disposition of cases on their merits; and (5) the availability of less 17 drastic sanctions.” 18 1421, 1423 (9th Cir. 1986)). The Ninth Circuit has recognized that the first and fourth 19 factors cut in opposite directions. See Yourish v. California Amplifier, 191 F.3d 983, 990 20 (9th Cir. 1999) (first factor always weighs in favor of dismissal); Hernandez v. City of El 21 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 22 After a review of the record, this Court finds that the second factor weighs in favor 23 of dismissal. As the court noted in Yourish, the routine noncompliance of litigants should 24 not prevent the court from managing its docket. Yourish, 191 F. 3d 990. Plaintiff failed 25 to comply with one of the most basic requirements of litigation and, to date, offers no 26 excuse for failing to respond to defendants’ motion to dismiss. The fact that plaintiff has 27 yet to make any attempt to address the motion to dismiss also supports a finding of 28 prejudice towards defendant and weighs in favor of dismissal. 2 Finally, with respect to 13cv0565 1 whether less drastic measures have been considered, in the interest of lessening the 2 sanction imposed on plaintiff, the Court will grant defendant’s motion to dismiss without 3 prejudice. Thus, this Court finds the factors weigh heavily in favor of granting defendant’s 4 motion to dismiss. CONCLUSION AND ORDER 5 6 Based on the foregoing, IT IS HEREBY ORDERED that: 7 1. Defendant’s motion to dismiss [doc. # 7] is GRANTED; 8 2. The claims against defendant Wells Fargo Bank, N.A. contained in the instant complaint are DISMISSED without prejudice; and 9 10 11 3. Dated: The date of June 17, 2013 set for hearing defendant’s motion is VACATED. June 10, 2013 12 JOHN A. HOUSTON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 13cv0565

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