Williamson v. Wells Fargo Home Mortgage et al

Filing 12

ORDER granting 6 Motion to Dismiss and dismissing 1 Complaint. Signed by Judge James C. Mahan on 11/29/2016. (Copies have been distributed pursuant to the NEF - JM)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

AARON WILLIAMSON,

8
9
10
11

Case No. 2:16-CV-2251 JCM (NJK)
Plaintiff(s),

ORDER

v.
WELLS FARGO HOME MORTGAGE,
Defendant(s).

12
13

Presently before the court is defendant Wells Fargo Bank, N.A.’s motion to dismiss

14

plaintiff Aaron Williamson’s complaint pursuant to Federal Rules of Civil Procedure 9(b) and

15
16

12(b)(6). (ECF No. 6). Plaintiff has not filed a response to the motion to dismiss, and the deadline
for submission has passed. (ECF No. 11).
The local rules have the force of law. See United States v. Hvass, 355 U.S. 570, 574–575

17
18

(1958). Under Local Rule 7-2(d), “[t]he failure of an opposing party to file points and authorities
in response to any motion . . . constitutes a consent to the granting of the motion.” The Ninth

19

Circuit instructs that a district court must weigh several factors before granting a motion filed

20

pursuant to Federal Rule of Civil Procedure 12 because a party failed to comply with a local rule:

21

“(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its

22

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

23

cases o[n] their merits; and (5) the availability of less drastic sanctions.” Ghazali v. Moran, 46

24
25

F.3d 52, 53 (9th Cir. 1995) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)
(discussing a Nevada local rule construing a failure to oppose a motion as effectively consenting
to the granting of that motion); see also Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003)

26
27
28
James C. Mahan
U.S. District Judge

(indicating that Ghazali provides the applicable rule for evaluating a Rule 12 motion to dismiss in
light of a local rule authorizing dismissal).

1

This court finds that granting defendant’s motion to dismiss would protect the public’s

2

interest in the expeditious resolution of litigation. See Ghazali, 46 F.3d at 53. Indeed, defendant

3

indicates that plaintiff has been unresponsive in another aspect of this case. (ECF No. 10 at 1)

4
5
6
7
8

(“Wells Fargo has attempted to contact Plaintiff in writing to prepare a Joint Status Report, but has
received no response.”).
This court also finds that granting defendant’s motion to dismiss would permit the court to
effectively manage its docket. See Ghazali, 46 F.3d at 53. Additionally, defendant would be
prejudiced if the court did not rule on the present motion because it would be forced to wait for
plaintiff—who initiated this case—to resolve the present action. See id.

9

This court acknowledges the public policy favoring the disposition of cases on their merits.

10

See id. However, dismissal is an appropriate sanction in this circumstance because about a month

11

has elapsed since the expiration of plaintiff’s response deadline, and plaintiff has yet to file an

12

opposition to defendant’s motion to dismiss. Indeed, “pro se litigants are bound by the rules of

13

procedure.” Id. at 54.

14
15
16

Weighing the Henderson factors, this court finds that defendant’s motion to dismiss will
be granted pursuant to Local Rule 7-2(d). See id. at 53.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant Wells Fargo

17

Bank, N.A.’s motion to dismiss plaintiff’s complaint (ECF No. 6) be, and the same hereby is,

18

GRANTED.

19
20
21
22

IT IS FURTHER ORDERED that plaintiff Aaron Williamson’s complaint (ECF No. 1-1)
be, and the same hereby is, DISMISSED without prejudice.
DATED November 29, 2016.
__________________________________________
UNITED STATES DISTRICT JUDGE

23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-2-