Siphengphone v. Wells Fargo Bank, N.A. et al

Filing 15

ORDER granting 9 Defendant Clear Recon's unopposed Motion to Dismiss. As to Clear Recon, the instant complaint is dismissed without prejudice. The hearing date scheduled for 1/29/2018 is vacated. Signed by Judge John A. Houston on 1/19/2018. (jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Somphet Siphengphone,

Case No.: 17-cv-02117-JAH-MDD
Plaintiff,

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v.

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ORDER GRANTING DEFENDANT
CLEAR RECON’S UNOPPOSED
MOTION TO DISMISS

Wells Fargo Bank, N.A., et al.,

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Defendants.

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INTRODUCTION

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Pending before this Court is Defendant Clear Recon Corporation’s (“Clear Recon”)

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Motion to Dismiss for failure to state a claim upon which relief may be granted pursuant

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to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [Doc. No. 9]. Plaintiff did not file

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an opposition to the Motion to Dismiss. After a careful review of the pleadings filed by

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Clear Recon, along with the entire record of this matter, this Court GRANTS Clear

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Recon’s unopposed Motion to Dismiss.

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BACKGROUND

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Plaintiff originally filed the instant complaint in the Superior Court of California on

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August 31, 2017. See Doc. No. 1. On October 16, 2017, the case was removed to this Court.

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Id. On November 7, 2017, Clear Recon filed a Motion to Dismiss and a hearing date was

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scheduled for January 29, 2018. See Doc. No. 9. Plaintiff has yet to file an opposition to

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the Motion to Dismiss, and the time frame permitting such filing has lapsed.

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DISCUSSION

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The Ninth Circuit has held that a district court may properly grant a motion to

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dismiss as unopposed pursuant to a local rule where the local rule permits, but does not

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require the granting of a motion for failure to respond. See generally, Ghazali v. Moran, 46

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

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

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

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constitute a consent to the granting of that motion or other request for ruling by the court.”

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Since Clear Recon’s Motion to Dismiss is set for hearing on January 29, 2018, Local Rule

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7.1(e.2) required Plaintiff to file an opposition no later than January 15, 2018. To date,

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Plaintiff has neither filed an opposition nor sought additional time to do so.

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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 public

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policy favoring disposition of cases on 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)). The Ninth Circuit has recognized that the first and fourth factors cut in

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opposite directions. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)

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(first factor always weighs in favor of dismissal); Hernandez v. City of El Monte, 138 F.3d

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393, 401 (9th Cir. 1998) (fourth factor counsels against dismissal).

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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 has failed

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to comply with one of the most basic requirements of litigation and to date has offered no

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justification for failing to respond to Clear Recon’s Motion to Dismiss. Plaintiff’s failure

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to address the Motion to Dismiss also supports a finding of prejudice towards Clear Recon,
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and weighs in favor of dismissal. Finally, with respect to whether less drastic measures

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have been considered, in the interest of lessening the sanction imposed on Plaintiff, the

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Court will grant Clear Recon’s Motion to Dismiss without prejudice. Thus, this Court finds

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the factors weigh heavily in favor of granting Clear Recon’s Motion to Dismiss.

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CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Clear Recon’s unopposed Motion to Dismiss [Doc. No. 9] is

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GRANTED;

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2. As to Clear Recon, the instant complaint is DISMISSED without

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prejudice; and

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3. The hearing date scheduled for January 29, 2018, in front of this Court,

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is VACATED.
IT IS SO ORDERED.
DATED:

January 19, 2018
_________________________________
JOHN A. HOUSTON
United States District Judge

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