Middleton v. BAC Home Loan Servicing LP

Filing 14

ORDER that 8 Motion to Dismiss is GRANTED. Plaintiff's complaint shall be dismissed without prejudice. The Clerk shall close the case. Signed by Judge James C. Mahan on 7/1/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ERVIN MIDDLETON,

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2:13-CV-1376 JCM (CWH)

Plaintiff(s),
v.
BAC HOME LOAN SERVICING LP,

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Defendant(s).

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ORDER

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Presently before the court is defendant BAC Home Loan Servicing LP’s motion to dismiss

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for lack of proper service and failure to state a claim. (Doc. # 8). Though the response deadline has

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passed, pro se plaintiff Ervin Middleton has not filed an opposition.

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Defendant argues that plaintiff fails to support his claims under the Fair Debt Collection

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Practices Act and Fair Credit Reporting Act with sufficient factual allegations to satisfy the standard

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set by Federal Rule of Civil Procedure 12(b)(6). Defendant also asserts that it has never properly

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been served in this matter, and therefore the complaint should be dismissed pursuant to Federal Rule

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of Civil Procedure 12(b)(5).

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Failure to follow the local rules of a district court may constitute a proper ground for

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dismissal. United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). “Before dismissing the action,

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the district court is required to weigh several 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 the

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

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James C. Mahan
U.S. District Judge

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of less drastic sanctions.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (internal citation

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omitted).

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Local Rule 7-2(d) provides that the failure of a party “to file points and authorities in

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response to any motion shall constitute a consent to the granting of the motion.” In consideration of

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the extremely generalized nature of plaintiff’s complaint, plaintiff’s failure to file an opposition, the

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interest in expeditious resolution of litigation, the court’s need to manage its docket, the risk of

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prejudice to defendant, the public policy favoring disposition of cases on their merits, and the

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availability of less drastic sanctions, the court finds that dismissal without prejudice is appropriate.

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Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s motion to
dismiss (doc. # 8) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that plaintiff’s complaint shall be dismissed without prejudice.
The clerk of the court is instructed to close the case.
DATED July 1, 2014.

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

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