Gaston v. Bank of America

Filing 7

ORDER Granting Defendant's 5 Motion to Dismiss. Plaintiff's 1 -1 Complaint is Dismissed without prejudice. The clerk shall close the case. Signed by Judge James C. Mahan on 11/30/2016. (Copies have been distributed pursuant to the NEF - SLD)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 JONATHAN A. GASTON, 8 9 10 Case No. 2:16-CR-2389 JCM (NJK) V Plaintiff(s), ORDER v. BANK OF AMERICA, 11 Defendant(s). 12 13 14 15 16 Presently before the court is the matter of Gaston v. Bank of America, case number 2:16cv-02389-JCM-NJK. On October 17, 2016, defendant Bank of America filed a motion to dismiss. (ECF No. 5). Responses were due by November 3, 2016. 17 To date, pro se plaintiff Jonathan Gaston has yet to file a response. Pursuant to Local Rule 18 7-2(d), “the failure of an opposing party to file points and authorities in response to any motion . . 19 . constitutes a consent to the granting of the motion.” LR 7-2(d). Thus, by failing to file a timely 20 response, plaintiff has consented to the granting of defendant’s motion to dismiss. See United 21 States v. Hvass, 355 U.S. 570, 574–75 (1958) (holding that local rules have the force of law). 22 Nevertheless, before dismissing an action for failure to comply with a local rule, the court 23 considers several factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 24 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 25 favoring disposition of cases o[n] their merits; and (5) the availability of less drastic sanctions.” 26 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). 27 After weighing these factors and reviewing the underlying filings, the court finds dismissal 28 appropriate and will grant defendant’s motion to dismiss. Dismissal serves the public’s interest in James C. Mahan U.S. District Judge 1 expeditious resolution of litigation and allows the court to effectively manage its docket. While 2 public policy favors the disposition of cases on their merits, forcing defendant to wait for plaintiff, 3 who has been unresponsive in the proceedings thus far, would likely prejudice the defendant. 4 Approximately one month has elapsed since the expiration of plaintiff’s response deadline, and 5 plaintiff has yet to file an opposition to defendant’s motion to dismiss. 6 acknowledges that plaintiff is appearing pro se, pro se litigants are nonetheless bound by the same 7 rules of procedure. See id. at 54. While the court 8 Accordingly, 9 IT IS HEREBY ORDERED that defendant’s motion to dismiss (ECF No. 5) be, and the 10 11 12 same hereby is, GRANTED. IT IS FURTHER ORDERED that plaintiff’s complaint (ECF No. 1-1) be, and the same hereby is, DISMISSED WITHOUT PREJUDICE. 13 The clerk shall close the case. 14 DATED November 30, 2016. 15 16 __________________________________________ UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -2-

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