Gonzalez v. Bank of New York Mellon et al

Filing 19

AMENDED ORDER Granting 6 MOTION to Dismiss. Plaintiff's Complaint is Dismissed without Prejudice. The Clerk of the Court shall enter judgment. Signed by Judge Gloria M. Navarro on 12/28/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PATRICIA GONZALEZ,
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Plaintiffs,

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vs.

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BANK OF NEW YORK MELLON and
COUNTRYWIDE SECURITIES,

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Defendants.

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Case No.: 2:13-cv-00306-GMN-CWH
ORDER

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Before the Court is the Motion to Dismiss (ECF No. 6) filed by Defendants Bank of New

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York Mellon and Countrywide Home Loans, Inc. (“Defendants”). Plaintiff, who is representing

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herself pro se, has failed to file a Response to the Motion to Dismiss. Defendants have, however,

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filed a Notice of Non-Opposition (ECF No. 11). For the reasons that follow, the Motion to

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Dismiss will be GRANTED, and Plaintiff’s Complaint will be dismissed.

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I.

BACKGROUND

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This lawsuit was originally filed on January 28, 2013 in state court. Defendants removed

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the case to this Court on February 25, 2013. Plaintiff’s Complaint alleges a number of causes of

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action against Defendants related to the foreclosure proceedings that were initiated against

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Plaintiff’s property.
On February 26, 2013, Defendants filed a Motion to Dismiss (ECF No. 6). Pursuant to D.

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Nev. R. 7-2(b), Plaintiff had fourteen (14) days after service of the Motion to file a Response;

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therefore, Plaintiff had until March 15, 2013, to file a Response.

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

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case was likely to be decided on the merits. Plaintiff has failed to take any action since the case

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was removed to this Court. Accordingly, the Court concludes that consideration of the five

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factors discussed above weighs in favor of dismissal. However, in consideration of Plaintiff’s

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pro se status, the Court will dismiss Plaintiff’s Complaint without prejudice.

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III.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 6) is GRANTED.

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Plaintiffs’ Complaint is DISMISSED without prejudice. The Clerk of the Court shall enter

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judgment accordingly.

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DATED this 28th day of March, 2013.

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________________________________
Gloria M. Navarro
United States District Judge

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