Zakar v. Nationstar Mortgage LLC et al

Filing 14

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

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 SOUTHERN DISTRICT OF CALIFORNIA ROBERT ZAKAR, Case No.: 3:16-CV-3029-CAB-JLB Plaintiff, 10 11 v. 12 NATIONSTAR MORTGAGE LLC et al., 13 DISMISSAL WITHOUT PREJUDICE Defendants. 14 15 16 Plaintiff filed this lawsuit on December 14, 2016. Because no activity had occurred 17 on the docket as of March 27, 2017, the Court issued an order requiring Plaintiff to show 18 cause why the lawsuit should not be dismissed for failure to prosecute. Four days letter, 19 Plaintiff filed proofs of service reflecting that the summons and complaint had been served 20 on four of the seven defendants on March 31, 2017. On April 7, 2017, Plaintiff responded 21 to the order to show cause stating that the remaining three defendants “have been sent out 22 for service [sic].” 23 On April 19, 2017, the four defendants who were served filed a motion to dismiss 24 the complaint for failure to state a claim. The motion included a notice of a hearing date 25 (set for briefing purposes only) of May 24, 2017. Civil Local Rule 7.1.e.2. requires a party 26 opposing a motion to file an opposition or statement of non-opposition no later than 27 fourteen calendar days before the noticed hearing. Failure to comply with these rules “may 28 constitute a consent to the granting of a motion.” Civ. Local R. 7.1.f.3.c. Here, Plaintiff’s 1 3:16-CV-3029-CAB-JLB 1 opposition to the motion to dismiss was due no later than May 10, 2017. As of the date of 2 this order, no opposition has been filed. 3 District courts have broad discretion to enact and apply local rules, including 4 dismissal of a case for failure to comply with the local rules. Ghazali v. Moran, 46 F.3d 5 52, 53 (9th Cir. 1995) (affirming grant of an unopposed motion to dismiss under local rule 6 by deeming a pro se litigant’s failure to oppose as consent to granting the motion). Before 7 dismissing an action for failure to comply with local rules, the district court “weigh[s] 8 several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the 9 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 10 policy favoring disposition of cases of their merits; and (5) the availability of less drastic 11 sanctions.’” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 12 (9th Cir. 1986)). 13 These factors weigh in favor of granting the motion to dismiss and dismissing this 14 lawsuit in its entirety for failure to prosecute. Plaintiff has made no effort to prosecute this 15 lawsuit, failing even to serve the summons and complaint until prompted by the Court. 16 Plaintiff’s lack of action is consistent with the assertion in the motion to dismiss that this 17 lawsuit is merely a continuation of a state court action and “a new attempt to prolong 18 litigation and engage in gamesmanship.” [Doc. No. 13 at 5.] Moreover, the motion itself 19 appears meritorious and equally applicable to the claims against the three defendants who 20 have yet to be served. Ultimately, based on the lack of opposition and of the apparent 21 merits of the motion itself, the Court finds that “the public’s interest in expeditious 22 resolution of litigation,” “the court’s need to manage its docket,” and “the risk of prejudice 23 to the defendants” all weigh in favor of granting the motion to dismiss and dismissing this 24 action in its entirety. See Ghazali, 46 F.3d at 53. 25 Accordingly, it is hereby ORDERED that the unopposed motion to dismiss is 26 GRANTED and the claims against the four defendants who filed the motion are 27 DISMISSED WITHOUT PREJUDICE. It is further ORDERED that the lawsuit is 28 2 3:16-CV-3029-CAB-JLB 1 DISMISSED WITHOUT PREJUDICE in its entirety with respect to all claims against 2 all defendants for failure to prosecute. 3 4 It is SO ORDERED. Dated: May 22, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3:16-CV-3029-CAB-JLB

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?