Zakar v. Nationstar Mortgage LLC et al

Filing 14

Dismissal Without Prejudice. Signed by Judge Cathy Ann Bencivengo on 5/22/2017. (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
ROBERT ZAKAR,

Case No.: 3:16-CV-3029-CAB-JLB
Plaintiff,

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v.

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NATIONSTAR MORTGAGE LLC et al.,

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DISMISSAL WITHOUT PREJUDICE

Defendants.

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Plaintiff filed this lawsuit on December 14, 2016. Because no activity had occurred

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on the docket as of March 27, 2017, the Court issued an order requiring Plaintiff to show

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cause why the lawsuit should not be dismissed for failure to prosecute. Four days letter,

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Plaintiff filed proofs of service reflecting that the summons and complaint had been served

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on four of the seven defendants on March 31, 2017. On April 7, 2017, Plaintiff responded

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to the order to show cause stating that the remaining three defendants “have been sent out

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for service [sic].”

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On April 19, 2017, the four defendants who were served filed a motion to dismiss

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the complaint for failure to state a claim. The motion included a notice of a hearing date

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(set for briefing purposes only) of May 24, 2017. Civil Local Rule 7.1.e.2. requires a party

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opposing a motion to file an opposition or statement of non-opposition no later than

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fourteen calendar days before the noticed hearing. Failure to comply with these rules “may

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constitute a consent to the granting of a motion.” Civ. Local R. 7.1.f.3.c. Here, Plaintiff’s
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3:16-CV-3029-CAB-JLB

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opposition to the motion to dismiss was due no later than May 10, 2017. As of the date of

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this order, no opposition has been filed.

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District courts have broad discretion to enact and apply local rules, including

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dismissal of a case for failure to comply with the local rules. Ghazali v. Moran, 46 F.3d

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52, 53 (9th Cir. 1995) (affirming grant of an unopposed motion to dismiss under local rule

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by deeming a pro se litigant’s failure to oppose as consent to granting the motion). Before

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dismissing an action for failure to comply with local rules, the district court “weigh[s]

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several 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 public

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

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sanctions.’” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423

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(9th Cir. 1986)).

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These factors weigh in favor of granting the motion to dismiss and dismissing this

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lawsuit in its entirety for failure to prosecute. Plaintiff has made no effort to prosecute this

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lawsuit, failing even to serve the summons and complaint until prompted by the Court.

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Plaintiff’s lack of action is consistent with the assertion in the motion to dismiss that this

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lawsuit is merely a continuation of a state court action and “a new attempt to prolong

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litigation and engage in gamesmanship.” [Doc. No. 13 at 5.] Moreover, the motion itself

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appears meritorious and equally applicable to the claims against the three defendants who

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have yet to be served. Ultimately, based on the lack of opposition and of the apparent

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merits of the motion itself, the Court finds that “the public’s interest in expeditious

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resolution of litigation,” “the court’s need to manage its docket,” and “the risk of prejudice

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to the defendants” all weigh in favor of granting the motion to dismiss and dismissing this

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action in its entirety. See Ghazali, 46 F.3d at 53.

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Accordingly, it is hereby ORDERED that the unopposed motion to dismiss is

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GRANTED and the claims against the four defendants who filed the motion are

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DISMISSED WITHOUT PREJUDICE. It is further ORDERED that the lawsuit is

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3:16-CV-3029-CAB-JLB

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DISMISSED WITHOUT PREJUDICE in its entirety with respect to all claims against

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all defendants for failure to prosecute.

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It is SO ORDERED.
Dated: May 22, 2017

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