Dryden v. Faen et al

Filing 73

ORDER. IT IS HEREBY ORDERED that 59 Defendants' Motion to Dismiss is GRANTED. Plaintiff's 28 Second Amended Complaint is DISMISSED without prejudice. The Clerk shall close the case and enter judgment accordingly. Signed by Chief Judge Gloria M. Navarro on 4/19/17. (Copies have been distributed pursuant to the NEF - MR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JEFFREY L. DRYDEN, 4 Plaintiff, 5 vs. 6 JANITA FAEN, et al., 7 Defendants. 8 ) ) ) ) ) ) ) ) ) Case No.: 2:14-cv-01625-GMN-NJK ORDER 9 10 Before the Court is the Motion to Dismiss, (ECF No. 59), filed by Defendants Phillip 11 Burns, Juanita Fain (erroneously named “Janita Faen”), Jamie Davidson, Jeff Wells, and Erin 12 Farrar (collectively “Defendants”). Pro se Plaintiff Jeffrey L. Dryden (“Plaintiff”)1 has failed to 13 file a response to the Motion to Dismiss. For the reasons that follow, the Court GRANTS 14 Defendants’ Motion to Dismiss, and Plaintiff’s Second Amended Complaint, (ECF No. 28), is 15 hereby dismissed. 16 I. 17 BACKGROUND On January 6, 2017, Defendants filed their renewed Motion to Dismiss. (See Mot. to 18 Dismiss, ECF No. 59). Pursuant to Local Rule 7-2(b) of the Local Rules of Practice of the 19 United States District Court for the District of Nevada, Plaintiff had fourteen days after service 20 of the Motion to file a response. Accordingly, Plaintiff had until January 20, 2017, to file a 21 response. Not only did Plaintiff fail to meet this deadline, Plaintiff has failed to file any 22 response at all. 23 24 25 1 In light of Plaintiff’s status as a pro se litigant, the Court has liberally construed his filings, holding them to standards less stringent than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Page 1 of 3 1 2 II. DISCUSSION Local Rule 7-2(d) provides that “[t]he failure of an opposing party to file points and 3 authorities in response to any motion shall constitute a consent to the granting of the motion.” 4 D. Nev. Local R. 7-2(d). As the Ninth Circuit has held, “[f]ailure to follow a district court’s 5 local rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995); 6 see, e.g., Roberts v. United States of America, No. 2:01-cv-1230-RLH-LRL, 2002 WL 1770930 7 (D. Nev. June 13, 2002). However, before dismissing a case for failing to follow local rules or 8 for failure to prosecute, the district court must weigh five factors: “(1) the public’s interest in 9 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 10 prejudice to defendants/respondents; (4) the availability of less drastic sanctions; and (5) the 11 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 12 639, 642 (9th Cir. 2002). 13 Under this test, “the public’s interest in expeditious resolution of litigation always favors 14 dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Also, the Court’s need 15 to manage its docket is manifest. See State Farm Mut. Auto. Ins. Co. v. Ireland, No. 2:07-cv- 16 01541-RCJ-RJJ, 2009 WL 4280282 (D. Nev. Nov. 30, 2009). Further, Plaintiff’s failure to 17 timely respond to Defendants’ Motion has unreasonably delayed the resolution of this case, and 18 such unreasonable delay “creates a presumption of injury to the defense.” Henderson v. Duncan, 19 779 F.2d 1421, 1423 (9th Cir. 1986). Less drastic sanctions available to the Court include 20 dismissal of Plaintiff’s Second Amended Complaint without prejudice. 21 The fifth factor also does not weigh in favor of Plaintiff because it is not clear that this 22 case was likely to be decided on the merits. Plaintiff has failed to take any action since the 23 Motion to Dismiss was filed. Accordingly, the Court concludes that consideration of the five 24 factors discussed above weighs in favor of dismissal. 25 Page 2 of 3 1 2 III. CONCLUSION IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, (ECF No. 59), is 3 GRANTED. Plaintiff’s Second Amended Complaint, (ECF No. 28), is DISMISSED without 4 prejudice. 5 6 The Clerk shall close the case and enter judgment accordingly. 19 DATED this ____ day of April, 2017. 7 8 9 ________________________________ Gloria M. Navarro, Chief Judge United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 3 of 3

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