McDonald et al v. Mountain West Steel

Filing 21

ORDER granting 18 Motion to Dismiss Counterclaims with Prejudice for failure to state a claim. Signed by Judge Brian Morris on 6/7/2018. (NOS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
CV-17-54-BU-BMM
MICHAEL McDONALD, et. al.,
Plaintiffs and
Counter-Defendants,
vs.

ORDER

MOUNTAIN WEST STEEL, LLC,
Defendant and
Counter-Claimant.

Plaintiffs/Counter-Defendants Michael McDonald, et. al. (“Plaintiffs”) move
this Court to dismiss the counterclaims (Doc. 3) of Defendant/Counter-Claimant
Mountain West Steel, LLC (“Mountain West”) with prejudice for failure to state a
claim upon which relief can be granted under Federal Rule of Civil Procedure
12(b)(6) and Local Rule 7.1. (Doc. 18.) Mountain West opposes this motion. (Doc.
18.)
Mountain West filed the following counterclaims against Plaintiffs on
September 18, 2017: (1) slander/defamation; (2) tortious interference with
business; (3) fraud/negligent representation; (4) unjust enrichment; (5) breach of
contract; and (6) breach of the covenant of good faith and fair dealing. (Doc. 3.)
Plaintiffs filed a Motion to Dismiss Mountain West’s Counterclaims on March 12,
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2018. (Doc. 18.) Mountain West did not respond to the motion. The Court
ordered a telephonic status conference set for May 16, 2018, to discuss whether
counsel for Mountain West intended to respond to the motion. The Court convened
its telephonic status conference on May 16, 2018. Counsel for Mountain West
failed to appear. Counsel for Mountain West has yet to file response briefs or
communicate with the Court regarding the motion. For the following reasons, the
Court will grant Plaintiffs’ Motion to Dismiss.
DISCUSSION
Failure to follow a district court’s local rules provides adequate grounds for
dismissal. Stamey v. Ravalli County Commission, No. 9:17-CV-87-DLC, 2017
WL 6040811, at *1 (D. Mont. Dec. 6, 2017) (citing Ghazali v. Moran, 46 F.3d 52,
53 (9th Cir. 1995). Local Rule 7.1 states that responses to motions to dismiss must
be filed within 21 days after the motion was filed. D. Mont. Loc. R. 7.1(d)(1). The
moving party has the option to file a reply within 14 days after the filing of the
response. Id. No further briefing will be permitted without prior leave and the
motion is deemed ripe for ruling at the close of the time for response. Id.
The Plaintiffs filed their motion to dismiss on March 12, 2018. The period
for Mountain West to respond lapsed on April 2, 2018. As noted above, counsel
for Mountain West filed no further briefing. Counsel for Mountain West did not

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seek an extension of time in which to file a brief. The Court deems the motion ripe
for ruling as of April 2, 2018.
The Court must determine whether the following factors weigh in favor of
dismissal: “(1) the public’s interest in expeditious resolution of litigation; (2) the
court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)
the public policy favoring disposition of cases [on] their merits; and (5) the
availability of less drastic sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson
v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). An analysis of these five factors
supports dismissal in this case.
The first two factors weigh heavily in favor of dismissal. First, dismissal of
the counterclaims contributes to the expeditious resolution of this litigation and,
second, facilitates the Court’s need to manage its docket by freeing judicial
resources. The Court already has spent considerable resources accommodating
Mountain West.
On October 26, 2017, the Court ordered the parties to file a preliminary
pretrial statement by November 22, 2017, in advance of the pretrial conference set
for November 29, 2017. (Doc. 6.) Mountain West failed to submit a preliminary
pretrial statement and moved to continue the pretrial conference. (Doc. 10.) The
Court obliged and granted the motion. (Doc. 11.)

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At the conference, counsel for Mountain West advised the Court that his
preliminary pretrial statement would be filed by December 8, 2017. (Doc. 15.)
Counsel failed to file the statement as stated. The Court ordered that the
preliminary pretrial statement be filed by December 15, 2017, or show good cause
as to why counsel had failed to file the statement. (Doc. 15.)
The third factor, risk of prejudice to the defendants, weighs in favor of
dismissal. “Limited delays and the prejudice to a defendant from the pendency of
a lawsuit are realities of the system that have to be accepted, provided the prejudice
is not compounded by ‘unreasonable’ delays.” Pagtalunan v. Galaza, 291 F.3d
639, 642 (9th Cir. 2002) (citing Yourish v. California Amplifier, 191 F.3d 983, 991
(9th Cir. 1999)). Almost three months have lapsed since Plaintiffs filed their
motion. Mountain West’s failure to respond unreasonably delays the Plaintiffs’
ability to gather the witnesses and evidence necessary to combat the counterclaims.
This factor weighs in favor of dismissal.
Regarding the fourth factor, Mountain West’s failure to respond admittedly
limits the analysis of the merits of Mountain West’s counterclaims. Mountain
West failed to take advantage of multiple chances to file the brief in opposition of
the Plaintiffs’ motion. Mountain West has not filed a response or request an
extension of time in which to respond.

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The fifth factor also weighs in favor of dismissal. The Court finds no reason
to extend Mountain West’s deadline to respond. Mountain West already has been
given ample time to file a response and an opportunity to communicate with this
Court about the status of the response. Counsel for Mountain West failed to take
advantage of this latitude. The Court declines to issue an extension sua sponte.
The Court finds that the five factors weigh in favor of dismissal for noncompliance with Local Rule 7.1(d) by failing to respond to Plaintiffs’ Motion to
Dismiss Defendant’s Counterclaims. The counterclaims asserted by Mountain
West appear to be fatally defective as a matter of law. The Court has reviewed
Plaintiffs’ Motion to Dismiss Defendant’s Counterclaims and finds that it is
thoroughly argued, based on well-established legal principles, and meritorious.
ORDER
Accordingly, IT IS ORDERED that Plaintiffs’ motion to dismiss with
prejudice for failure to state a claim (Doc. 18) is GRANTED.
DATED this 7th day of June, 2018.

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