Schwartz-Tallard v. HSBC Bank USA, National Associaton
Filing
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ORDER granting 10 Motion to Dismiss plaintiffs Complaint without prejudice. The clerk shall enter judgment accordingly. Signed by Chief Judge Gloria M. Navarro on 2/13/2015. (Copies have been distributed pursuant to the NEF - DKJ)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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IRENE MICHELLE SCHWARTZTALLARD, an individual,
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Plaintiff,
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vs.
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HSBC BANK USA, National Association, )
its Assignees and/or Successors, and
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DOES I through X inclusive,
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Defendants.
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Case No.: 2:14-cv-01908-GMN-VCF
ORDER
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Before the Court is the Motion to Dismiss (ECF No. 10) filed by Defendant. Plaintiff has
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failed to file a Response to the Motion to Dismiss. For the reasons that follow, the Court
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GRANTS Defendant’s Motion to Dismiss and Plaintiff’s Complaint is hereby dismissed.
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I.
BACKGROUND
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Plaintiff Irene Michelle Schwartz-Tallard originally filed this lawsuit on September 9,
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2014 in Nevada state court. (Pet. for Removal Ex. A, ECF No. 1-1). Defendant HSBC Bank
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USA removed the case to this Court on November 14, 2014. (Pet. for Removal, ECF No. 1).
On January 15, 2015, Defendant filed a Motion to Dismiss. (ECF No. 10). Pursuant to
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Local Rule 7-2(b) of the Local Rules of Practice of the United States District Court for the
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District of Nevada, Plaintiff had fourteen days after service of the Motion to file a Response.
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Accordingly, Plaintiff had until February 1, 2015, to file a Response. Not only did Plaintiff fail
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to meet this deadline, Plaintiff has failed to file any Response at all.
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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
authorities in response to any motion shall constitute a consent to the granting of the motion.”
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D. Nev. R. 7-2(d). As the Ninth Circuit has held, “[f]ailure to follow a district court’s local rules
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is 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).
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Under this test, “the public’s interest in expeditious resolution of litigation always favors
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dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Also, the Court’s need
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to manage its docket is manifest. See State Farm Mut. Auto. Ins. Co. v. Ireland, No. 2:07-cv-
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01541-RCJ-RJJ, 2009 WL 4280282 (D. Nev. Nov. 30, 2009). Further, Plaintiff’s failure to
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timely respond to Defendant’s 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
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Motion to Dismiss was filed. Accordingly, the Court concludes that consideration of the five
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factors discussed above weighs in favor of dismissal.
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III.
CONCLUSION
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (ECF No. 10) is
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GRANTED. Plaintiff’s Complaint is DISMISSED without prejudice. The clerk shall enter
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judgment accordingly.
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DATED this 13th day of February, 2015.
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________________________________
Gloria M. Navarro
United States District Judge
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