Armstrong et al v. American Home Mortgage Acceptance Inc. et al

Filing 13

ORDER Granting 2 Defendant Power Default Services Inc.'s Motion to Dismiss and 10 and 11 Defendant American Home Mortgage Servicing 3 Inc.'s Joinder. Plaintiff's complaint is DISMISSED without prejudice. Signed by Judge Gloria M. Navarro on 9/12/11. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DANIEL A. ARMSTRONG and 191
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LENAPE HEIGHTS LAS VEGAS, NV., )
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Plaintiff,
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vs.
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AMERICAN HOME MORTGAGE
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ACCEPTANCE INC., AMERICAN
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HOME MORTGAGE SERVICING 3
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INC., MORTGAGE ELECTRONIC
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REGISTRATION SYSTEMS INC., U.S. )
BANK NATIONAL ASSOCIATION,
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POWER DEFAULT SERVICES INC. and )
DOES 1-100,
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Defendants.
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Case No.: 2:11-cv-01305-GMN-LRL
ORDER

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Before the Court is Defendant Power Default Services Inc.’s Motion to Dismiss

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(ECF No. 2) and Defendant American Home Mortgage Servicing 3 Inc.’s Joinder to

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Defendant Power Default Services Inc.’s Motion to Dismiss. (ECF No. 10, 11.) Plaintiffs

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have not filed a Response to the Motion to Dismiss. Defendant Power Default Services

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Inc. has, however, filed Notice of Non-Opposition. (ECF No. 9.) For the reasons that

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follow, the Motion to Dismiss and Joinder to Motion to Dismiss will be GRANTED.

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Plaintiffs’ Complaint will be dismissed without prejudice.

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I.

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BACKGROUND
This lawsuit was originally filed on July 15, 2011 in the Eighth Judicial District

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Court, Clark County, Nevada. (ECF No. 1.) The case was removed to this Court on

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August 12, 2011. Id. Plaintiffs’ Complaint alleges causes of action against Defendants

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Page 1 of 3

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related to the foreclosure proceedings that have been initiated against Plaintiff Daniel A.

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Armstrong’s property. Id.

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On August 12, 2011, Defendant Power Default Services Inc. filed a Motion to

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Dismiss. (ECF No. 2.) Pursuant to D. Nev. R. 7-2(b), Plaintiffs had fourteen days after

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service of the Motion to file a Response; therefore, Plaintiffs had until August 29, 2011 to

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file a Response. Not only did Plaintiffs fail to meet this deadline, Plaintiffs have failed to

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file any Response at all.

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On September 9, 2011, Defendant American Home Mortgage Servicing 3 Inc.
filed its Joinder to Defendant Power Default Services Inc.’s Motion to Dismiss. (ECF No.

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10, 11.)

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II.

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DISCUSSION
Local Rule 7-2 (d) provides that “[t]he failure of an opposing party to file points

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and authorities in response to any motion shall constitute a consent to the granting of the

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motion.” D. Nev. R. 7-2(d). As the Ninth Circuit has held, “[f]ailure to follow a district

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court’s local rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53

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(9th Cir. 1995); see, e.g., Roberts v. United States of America, 01-cv-1230-RLH-LRL,

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2002 WL 1770930 (D. Nev. June 13, 2002). However, before dismissing a case for

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failing to follow local rules or for failure to prosecute, the district court must weigh five

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factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s

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need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the

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availability of less drastic sanctions; and (5) the public policy favoring disposition of

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cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).

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Under this test, “the public’s interest in expeditious resolution of litigation always

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favors dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).

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Also, the Court’s need to manage its docket is manifest. See State Farm Mutual

Page 2 of 3

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Automobile Insurance Company v. Ireland, 2:07-cv-01541-RCJ-RJJ, 2009 WL 4280282

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(D. Nev. Nov. 30, 2009). Further, Plaintiffs’ failure to respond to Defendant’s Motion

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has unreasonably delayed the resolution of this case, and such unreasonable delay

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“creates a presumption of injury to the defense,” Henderson v. Duncan, 779 F.2d 1421,

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1423 (9th Cir. 1986).

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Defendant’s Motion to Dismiss and Joinder to Motion to Dismiss are GRANTED.
Plaintiffs’ Complaint is dismissed without prejudice.
CONCLUSION
IT IS HEREBY ORDERED that Defendant Power Default Services Inc.’s Motion

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to Dismiss (ECF No. 2) and Defendant American Home Mortgage Servicing 3 Inc.’s

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Joinder to the Motion to Dismiss (ECF No. 10, 11) are GRANTED. Plaintiffs’

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Complaint is DISMISSED without prejudice.

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DATED this 12th day of September, 2011.

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________________________________
Gloria M. Navarro
United States District Judge

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