Fitzgerald v. PNC Bank et al

Filing 38

MEMORANDUM DECISION AND ORDER granting 35 Motion to Dismiss filed by dft First American Title Insurance Co. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DOUGLAS JOHN FITZGERALD,
Case No. 1:10-CV-452-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
PNCBANK, PNC MORTGAGE, a
division of PNC BANK, NA, FIRST
AMERICAN TITLE INSURANCE
COMPANY, PIONEER TITLE
COMPANY, AND MERS INC.,
Defendants,

INTRODUCTION
Before the Court is Defendant First American Title Insurance Company’s Motion
to Dismiss (Dkt. 35). Defendant American Title Insurance Company moves to dismiss
Plaintiff Douglas John Fitzgerald’s claims for violations of the Fair Debt Collection
Practices Act, 15 U.S.C § 1692, et seq. and the Fair Credit Reporting Act, 15 U.S.C. §
1681 et seq. Fitzgerald failed to file a response.
District of Idaho Local Civil Rule 7.1 provides that a party opposing a motion shall file a
memorandum in opposition to the relief requested within twenty-one (21) days after being served
with the memorandum in support of the motion. Dist. Idaho Loc. Civ. R. 7.1(c)(1). To the
MEMORANDUM DECISION AND ORDER - 1

extent that the non-moving party does not object to the relief requested in the motion, the party is
required to file a notice of non-opposition to the court. Dist. Idaho Loc. Civ. R. 7.1(a)(5).
Failure to file either a notice of non-opposition or a memorandum in opposition to a motion may
be deemed as a consent to the relief requested. Dist. Idaho Loc. Civ. R. 7.1(f). And the Ninth

Circuit has held that a district court may properly grant a motion to dismiss pursuant to a
local rule, for failure to respond. See generally Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.
1995).
The allotted time provided by District of Idaho Local Civil Rule 7.1(c)(1), by July 25,
2011, has elapsed without Fitzgerald filing a response to First American’s Motion. Because of
Fitzgerald’s failure to respond, and pursuant to District of Idaho Local Civil Rule 7.1(f) and

Ghazali, the Court deems Fitzgerald’s failure to file an opposition to First American’s Motion as
consent to the requested relief. Moreover, the Court has conducted a thorough and independent
review of Fitzgerald’s complaint and deems dismissal appropriate.
ORDER
IT IS ORDERED that Defendant First American Title Insurance Company’s Motion

to Dismiss (Dkt. 35) is GRANTED.

DATED: August 5, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER - 2