Lareybi v. The Bank of New York Mellon et al
ORDER Granting 5 Defendants' Unopposed Motion to Dismiss Without Prejudice. The hearing on Defendants' Motion to Dismiss, currently set for May 26, 2017 is vacated. Signed by Judge Gonzalo P. Curiel on 5/17/17. (dlg)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CASE NO. 17cv0003-GPC(WVG)
The Bank of New York Mellon, FKA
The Bank of New York as Trustee for
16 the Certificateholders of the
CWALT,Inc. Alternative Trust
2006-0A12 Mortgage Pass-Through
Certificates, Series 2006-0A12; Bay
View Loan Servicing, LLC; Law
Offices of Les Zieve, as Trustee; Doe
# 1, and DOES 2 through 10,
MOTION TO DISMISS
[Dkt. No. 5.]
On March 7, 2017, Defendants The Bank of New York Mellon; Bay View Loan
21 Servicing, LLC; and Law Offices of Les Zieve filed a motion to dismiss the complaint.
22 (Dkt. No. 5.) The Court set a briefing schedule requiring Plaintiff to file a response by
23 April 21, 2017. (Dkt. No. 6.) To date, Plaintiff has not filed an opposition.
Civil Local Rule 7.1.e.2. requires a party opposing a motion to file an opposition
25 or statement of non-opposition within fourteen calendar days of the noticed hearing.
26 Failure to comply with these rules “may constitute a consent to the granting of a
27 motion.” Civ. Local R. 7.1.f.3.c. District courts have broad discretion to enact and
28 apply local rules, including dismissal of a case for failure to comply with the local
1 rules. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming grant of an
2 unopposed motion to dismiss under local rule by deeming a pro se litigant’s failure to
3 oppose as consent to granting the motion); United States v. Warren, 601 F.2d 471, 474
4 (9th Cir. 1979). Before dismissing an action for failure to comply with local rules, the
5 district court “weigh[s] several factors: ‘(1) the public’s interest in expeditious
6 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of
7 prejudice to the defendants; (4) the public policy favoring disposition of cases of their
8 merits; and (5) the availability of less drastic sanctions.’” Ghazali, 46 F.3d at 53
9 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)).
Here, the Court concludes that “the public’s interest in expeditious resolution of
11 litigation,” “the court’s need to manage its docket,” and “the risk of prejudice to the
12 defendants” weigh in favor of granting the motion to dismiss based on Plaintiff’s
13 failure to file an opposition. See Ghazali, 46 F.3d at 53. The majority of these factors
14 weigh in favor of dismissal.
Because Plaintiff has failed to comply with Civil Local Rule 7.1.f.3.c, the Court
16 finds good cause to grant Defendants’ unopposed motion to dismiss. The Court’s
17 docket reflects that Plaintiff was served with a copy of the motions and the Court’s
18 briefing schedule. Accordingly, the Court GRANTS Defendants’ motion to dismiss
19 as unopposed. See Civ. Local R. 7.1.f.3.c; see also Ghazali, 46 F.3d at 53.
IT IS HEREBY ORDERED that Plaintiff’s Complaint is DISMISSED
21 WITHOUT PREJUDICE, and the hearing on Defendants’ Motion to Dismiss,
22 currently set for May 26, 2017 is VACATED.
IT IS HEREBY ORDERED.
25 DATED: May 17, 2017
HON. GONZALO P. CURIEL
United States District Judge
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