Quimson et al v. CTX Mortgage Company, LLC et al

Filing 15

ORDER Granting 5 Motion to Dismiss. Plaintiffs' Complaint is DISMISSED without prejudice. Clerk shall enter judgment accordingly. Signed by Judge Gloria M. Navarro on 4/10/12. (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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ANGELIQUE CRUZ QUIMSON; ZENAIDA )
DELOS ANGELES,
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Plaintiffs,
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vs.
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CTX MORTGAGE COMPANY, LLC, et al., )
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Defendants.
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Case No.: 2:12-cv-00201-GMN-PAL
ORDER

Before the Court is the Motion to Dismiss (ECF No. 5) filed by Defendants Bank of

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America, N.A., The Bank of New York Mellon, ReconTrust Company, N.A., and Mortgage

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Electronic Registration System, Inc. Plaintiffs, who are representing themselves pro se, have not

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filed a Response to the Motion to Dismiss. Defendants have, however, filed a Notice of Non-

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Opposition (ECF No. 14). For the reasons that follow, the Motion to Dismiss will be granted,

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and Plaintiffs’ Complaint will be dismissed.

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I.

BACKGROUND
This lawsuit was originally filed on February 8, 2012 in this Court. Plaintiffs’ Complaint

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alleges a number of causes of action against Defendants related to the foreclosure proceedings

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that were initiated against Plaintiffs’ property.
On March 19, 2012, Defendants filed a Motion to Dismiss (ECF No. 5). Pursuant to D.

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Nev. R. 7-2(b), Plaintiffs had fourteen days after service of the Motion to file a Response;

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therefore, Plaintiffs had until April 5, 2012 to file a Response. Not only did Plaintiffs fail to meet

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this deadline, Plaintiffs have failed to file any Response at all.

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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 and

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authorities in response to any motion shall constitute a consent to the granting of the motion.” D.

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Nev. R. 7-2(d). As the Ninth Circuit has held, “[f]ailure to follow a district court’s local rules is

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a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995); see, e.g.,

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Roberts v. United States of America, No. 2:01-cv-1230-RLH-LRL, 2002 WL 1770930 (D. Nev.

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June 13, 2002). However, before dismissing a case for failing to follow local rules or for failure

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to prosecute, the district court must weigh five factors: “(1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

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defendants/respondents; (4) the availability of less drastic sanctions; and (5) the public policy

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

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2002).
Under this test, “the public’s interest in expeditious resolution of litigation always favors

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dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Also, the Court’s

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need to manage its docket is manifest. See State Farm Mut. Auto. Ins. Co. v. Ireland, No. 2:07-

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cv-01541-RCJ-RJJ, 2009 WL 4280282 (D. Nev. Nov. 30, 2009). Further, Plaintiffs’ failure to

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timely respond to Defendants’ motion has unreasonably delayed the resolution of this case, and

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such unreasonable delay “creates a presumption of injury to the defense.” Henderson v. Duncan,

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779 F.2d 1421, 1423 (9th Cir. 1986). Less drastic sanctions available to the Court include

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dismissal of Plaintiffs’ Complaint without prejudice.
The fifth factor also does not weigh in favor of Plaintiffs because it is not clear that this

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case was likely to be decided on the merits. Plaintiffs brought the lawsuit in this Court, and have

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failed to take any action after their Complaint was filed. Accordingly, the Court concludes that

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consideration of the five factors discussed above weighs in favor of dismissal. However, in

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consideration of Plaintiffs’ pro se status, the Court will dismiss Plaintiffs’ Complaint without

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prejudice.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 5) is GRANTED.

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Plaintiffs’ Complaint is DISMISSED without prejudice. The Clerk shall enter judgment

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accordingly.

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DATED this 10th day of April, 2012.

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________________________________
Gloria M. Navarro
United States District Judge

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