Hernandez v. Flagstar Bank, FSB

Filing 11

ORDER Granting 2 Defendant Flagstar Bank FSB's Motion to Dismiss. This case is hereby dismissed without prejudice. Signed by Judge James C. Mahan on 4/25/13. (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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ESTHER HERNANDEZ,

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2:13-CV-556 JCM (NJK)

Plaintiff(s),

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v.
FLAGSTAR BANK, FSB,

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Defendant(s).

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ORDER
Presently before the court is defendant Flagstar Bank, FSB’s motion to dismiss filed on April
1, 2013. (Doc. # 2).1 To date, pro se plaintiff Esther Hernandez has failed to file an opposition.2

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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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Defendant also filed a request for judicial notice (doc. # 3).

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Plaintiff had up to, and including, April 18, 2013, to respond.

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James C. Mahan
U.S. District Judge

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The instant motion seeks dismissal of plaintiff’s wrongful foreclosure complaint. Although

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the court must construe the pleadings liberally, “[p]ro se litigants must follow the same rules of

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procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); see also,

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Ghazali, 46 F.3d at 54 (“Although we construe pleadings liberally in their favor, pro se litigants are

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bound by the rules of procedure.”); see also Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986)

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(“[P]ro se litigants in the ordinary civil case should not be treated more favorably than parties with

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attorneys of record.”). In light of plaintiff’s failure to respond, and weighing the factors identified

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in Ghazali, the court finds dismissal appropriate.

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant Flagstar Bank,

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FSB’s motion to dismiss (doc. # 2) be, and the same hereby is, GRANTED. This case is hereby

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dismissed without prejudice.

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DATED April 25, 2013.

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

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