Pujol v. Bank of America Home Loans, N.A. et al

Filing 23

ORDER Granting 10 Defendants' Motion to Dismiss. The case is hereby dismissed as to Defendants Bank of America, N.A. for itself and as successor by merger to BAC Home Loans Servicing, LP; Deutsche Bank National Trust Co. as trustee for the c ertificate holders of Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Back Certificates, Series 2007-MLN1; and Mortgage Electronic Registration Systems, Inc. without prejudice. Signed by Judge James C. Mahan on 11/29/2012. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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HIRAN PUJOL,

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2:12-CV-1616 JCM (VCF)

Plaintiff(s),
v.
BANK OF AMERICA HOME LOANS,
N.A., et al.,

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Defendant(s).

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ORDER

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Presently before the court is defendants Bank of America, N.A. for itself and as successor

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by merger to BAC Home Loans Servicing, LP; Deutsche Bank National Trust Co. as trustee for the

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certificate holders of Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Back

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Certificates, Series 2007-MLN1; and Mortgage Electronic Registration Systems, Inc.’s motion to

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dismiss. (Doc. # 10). Following two requests for additional time to submit a timely response to

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defendants’ motion, plaintiff Hiran Pujol has failed to file an opposition. (See docs. # 20, 22).1

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

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as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,

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1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Where a

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complaint pleads facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the

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James C. Mahan
U.S. District Judge

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Plaintiff had up to, and including, November 16, 2012, to file an opposition. To date, plaintiff has failed to
file a response.

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line between possibility and plausibility of entitlement to relief.’” Id. (citing Bell Atlantic, 550 U.S.

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at 557). However, where there are well pled factual allegations, the court should assume their

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veracity and determine if they give rise to relief. Id. at 1950.

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Pursuant to Local Rule 7-2(d), an opposing party’s failure to file a timely response to any

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motion constitutes the party’s consent to the granting of the motion and is proper grounds for

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dismissal. U.S. v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). However, prior to dismissal, the

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district court is required to weigh several factors: “(1) the public’s interest in expeditious resolution

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

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(4) the public policy favoring disposition of cases of their merits; and (5) the availability of less

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drastic sanctions.”Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (citing Henderson v. Duncan,

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779 F.2d 1421, 1423 (9th Cir. 1986)).

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In light of plaintiff’s failure to respond and weighing the factors identified in Ghazali, the
court finds dismissal appropriate.

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants Bank of

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America, N.A. for itself and as successor by merger to BAC Home Loans Servicing, LP; Deutsche

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Bank National Trust Co. as trustee for the certificate holders of Merrill Lynch Mortgage Investors

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Trust, Mortgage Loan Asset-Back Certificates, Series 2007-MLN1; and Mortgage Electronic

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Registration Systems, Inc.’s motion to dismiss (doc. # 10) be, and the same hereby is, GRANTED.

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The case is hereby dismissed as to defendants Bank of America, N.A. for itself and as

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successor by merger to BAC Home Loans Servicing, LP; Deutsche Bank National Trust Co. as

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trustee for the certificate holders of Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-

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Back Certificates, Series 2007-MLN1; and Mortgage Electronic Registration Systems, Inc. without

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prejudice.

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DATED November 29, 2012.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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