Ludlow v. Silver State Financial Services, Inc. et al

Filing 11

ORDER Granting 9 Motion to Dismiss. IT IS FURTHER ORDERED that, under Federal Rule of Civil Procedure 4(m), plaintiffs complaint against defendants Silver State Financial Services, Inc., Recontrust Company, N.A., Old Republic Title Company of Nevada, and National Default Servicing Corporation be, and the same hereby is, DISMISSED without prejudice. The clerk is ordered to close the case. Signed by Judge James C. Mahan on 7/16/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KURT B. LUDLOW,

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Case No. 2:15-CV-235 JCM (NJK)
Plaintiff(s),

ORDER

v.
SILVER STATE FINANCIAL SERVICES,
INC., et al.,
Defendant(s).

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James C. Mahan
U.S. District Judge

Presently before the court is defendants Mortgage Electronic Registration Systems, Inc.
and the Bank of New York Mellon’s motion to dismiss complaint. (Doc. # 9). Plaintiff’s response
was due by July 6, 2015. Plaintiff has not filed a response or sought an extension from the court.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Where a complaint pleads facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops
short of the line between possibility and plausibility of entitlement to relief.’” Id. (citing Bell
Atlantic, 550 U.S. at 557). However, where there are well pled factual allegations, the court should
assume their veracity and determine if they give rise to relief. Id. at 1950.
Pursuant to Local Rule 7-2, an opposing party must file points and authorities in response
to a motion and failure to file a timely response constitutes the party’s consent to the granting of
the motion and is proper grounds for dismissal. See LR IB 7-2(d); United States v. Warren, 601
F.2d 471, 474 (9th Cir. 1979). However, prior to dismissal, the district court is required to weigh
several factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need

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to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases of their merits; and (5) the availability of less drastic sanctions.” Ghazali v.

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Moran, 46 F.3d 52, 53 (9th Cir. 1995) (citing Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.

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1986)).
In light of plaintiff’s failure to respond and weighing the factors identified in Ghazali, the

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court finds dismissal of plaintiff’s complaint against the moving defendants appropriate.

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Further Federal Rule of Civil Procedure 4(m) provides: “If a defendant is not served within

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120 days after the complaint is filed, the court—on motion or on its own after notice to the

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plaintiff—must dismiss the action without prejudice.”

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Plaintiff filed his complaint on February 10, 2015. (Doc. #1). On June 15, 2015, the clerk

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of the court provided notice to plaintiff that the action would be dismissed as to defendants Silver

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State Financial Services, Inc., Recontrust Company, N.A., Old Republic Title Company of

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Nevada, and National Default Servicing Corporation, if plaintiff did not file proof of service of

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process by July 15, 2015. (Doc. # 8).
To date, plaintiff has failed to file proof of service with the court as to the above named

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defendants.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants Mortgage

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Electronic Registration Systems, Inc. and the Bank of New York Mellon’s motion to dismiss

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complaint (doc. # 9) be, and the same hereby is, GRANTED. Plaintiff’s complaint against

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Mortgage Electronic Registration Systems, Inc. and the Bank of New York Mellon is

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DISMISSED.

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James C. Mahan
U.S. District Judge

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IT IS FURTHER ORDERED that, under Federal Rule of Civil Procedure 4(m), plaintiff’s

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complaint against defendants Silver State Financial Services, Inc., Recontrust Company, N.A., Old

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Republic Title Company of Nevada, and National Default Servicing Corporation be, and the same

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hereby is, DISMISSED without prejudice. The clerk is ordered to close the case.

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DATED July 16, 2015.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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