Morales v. Bank of America N.A. et al

Filing 11

ORDER that 5 Defendants' Motion to Dismiss is GRANTED. Plaintiffs Complaint is DISMISSED without prejudice. Signed by Chief Judge Gloria M. Navarro on 7/23/15. (Copies have been distributed pursuant to the NEF - MMM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

MARIA MORALES,
4
5
6
7
8
9

)
)
Plaintiff,
)
vs.
)
)
BANK OF AMERICA N.A.; RECONTRUST )
COMPANY, N.A.,
)
)
Defendants.
)
)

Case No.: 2:15-cv-01199-GMN-PAL
ORDER

Before the Court is the Motion to Dismiss (ECF No. 5) filed by Defendants Bank of

10
11

America N.A. (“BANA”) and Recontrust Company, N.A. (“Recontrust”) (collectively,

12

“Defendants”). Plaintiff has failed to file a Response to the Motion to Dismiss. For the reasons

13

that follow, the Court GRANTS Defendants Motion to Dismiss and Plaintiff’s Complaint is

14

hereby dismissed without prejudice.

15

I.

16

BACKGROUND
This case arises from the attempted foreclosure proceedings against real property

17

located at 7945 Cina Ave., Las Vegas, Nevada 89015 (“Property”). (Compl. ¶¶ 8–9, ECF No.

18

1-2). Plaintiff alleges that she obtained the Property through deed of trust in 2008, to which

19

BANA is the beneficiary and Recontrust is the trustee.” (Id. ¶¶ 2, 8).

20
21

Plaintiff filed an action in state court, asserting a quiet title claim. (Id. ¶¶ 10–14).
Shortly thereafter, Defendants removed the case to this Court. (Notice of Removal, ECF No. 1).

22

On June 26, 2015, Defendants filed a Motion to Dismiss. (ECF No. 5). Pursuant to

23

Local Rule 7-2(b) of the Local Rules of Practice of the United States District Court for the

24

District of Nevada, Plaintiff had fourteen days after service of the Motion to file a Response.

25

Not only did Plaintiff fail to respond within fourteen days, Plaintiff has failed to file any

Page 1 of 3

1
2
3

Response at all.
II.

DISCUSSION
Local Rule 7-2(d) provides that “[t]he failure of an opposing party to file points and

4

authorities in response to any motion shall constitute a consent to the granting of the motion.”

5

D. Nev. R. 7-2(d). As the Ninth Circuit has held, “[f]ailure to follow a district court’s local

6

rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995); see,

7

e.g., Roberts v. United States of America, No. 2:01-cv-1230-RLH-LRL, 2002 WL 1770930 (D.

8

Nev. June 13, 2002). However, before dismissing a case for failing to follow local rules or for

9

failure to prosecute, the district court must weigh five factors: “(1) the public’s interest in

10

expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

11

prejudice to defendants/respondents; (4) the availability of less drastic sanctions; and (5) the

12

public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d

13

639, 642 (9th Cir. 2002).

14

Under this test, “the public’s interest in expeditious resolution of litigation always favors

15

dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Also, the Court’s

16

need to manage its docket is manifest. See State Farm Mut. Auto. Ins. Co. v. Ireland, No. 2:07-

17

cv-01541-RCJ-RJJ, 2009 WL 4280282 (D. Nev. Nov. 30, 2009). Further, Plaintiff’s failure to

18

timely respond to Defendant’s motion has unreasonably delayed the resolution of this case, and

19

such unreasonable delay “creates a presumption of injury to the defense.” Henderson v.

20

Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). Less drastic sanctions available to the Court

21

include dismissal of Plaintiff’s Complaint without prejudice.

22

The fifth factor also does not weigh in favor of Plaintiff because it is not clear that this

23

case was likely to be decided on the merits. Plaintiff has failed to take any action since the

24

Motion to Dismiss was filed. Accordingly, the Court concludes that consideration of the five

25

factors discussed above weighs in favor of dismissal.

Page 2 of 3

1
2
3
4

III.

CONCLUSION
IT IS HEREBY ORDERED Defendants’ Motion to Dismiss (ECF No. 5) is

GRANTED. Plaintiff’s Complaint is DISMISSED without prejudice.
DATED this23rd day of July, 2015.

5
6
7
8

___________________________________
Gloria M. Navarro, Chief Judge
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Page 3 of 3