Tarr v. Select Portfolio Servicing Inc et al

Filing 8

ORDER Granting Defendants Bank of America, N.A. and First Franklin Mortgage Loan Trust's 5 Motion to Dismiss. The case is dismissed without prejudice. Signed by Judge James C. Mahan on 6/24/2015. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

GEORGE TARR,

8
9
10
11

Case No. 2:15-CV-964 JCM (CWH)
Plaintiff(s),

ORDER

v.
SELECT PORTFOLIO SERVICING, et al.,
Defendant(s).

12
13

Presently before the court is defendants Bank of America, N.A. and First Franklin

14

Mortgage Loan Trust’s motion to dismiss complaint. (Doc. # 5). Plaintiff’s response was due by

15

June 18, 2015. Plaintiff has not filed a response or sought an extension from the court.

16

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

17

accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.

18

Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

19

“Where a complaint pleads facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops

20

short of the line between possibility and plausibility of entitlement to relief.’” Id. (citing Bell

21

Atlantic, 550 U.S. at 557). However, where there are well pled factual allegations, the court should

22

assume their veracity and determine if they give rise to relief. Id. at 1950.

23

Pursuant to Local Rule 7-2, an opposing party must file points and authorities in response

24

to a motion and failure to file a timely response constitutes the party’s consent to the granting of

25

the motion and is proper grounds for dismissal. See LR IB 7-2(d); United States v. Warren, 601

26

F.2d 471, 474 (9th Cir. 1979). However, prior to dismissal, the district court is required to weigh

27

several factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need

28

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

James C. Mahan
U.S. District Judge

1

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

2

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

3

1986)).

4
5

In light of plaintiff’s failure to respond and weighing the factors identified in Ghazali, the
court finds dismissal of plaintiff’s complaint (doc. # 1-1) appropriate.

6

Accordingly,

7

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants Bank of

8

America, N.A. and First Franklin Mortgage Loan Trust’s motion to dismiss complaint (doc. # 5)

9

be, and the same hereby is, GRANTED. The case is dismissed without prejudice.

10
11
12

DATED June 24, 2015.
__________________________________________
UNITED STATES DISTRICT JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-2-