Biddle v. Bank of America, N.A. et al

Filing 20

ORDER granting 4 Motion to Dismiss without prejudice. Signed by Judge James C. Mahan on 8/1/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 EBONY BIDDLE, Case No. 2:16-CV-2582 JCM (PAL) 8 9 10 Plaintiff(s), ORDER v. BANK OF AMERICA, N.A., et al., 11 Defendant(s). 12 13 Presently before the court is defendant Bank of America, N.A.’s (“BANA”) motion to 14 dismiss. (ECF No. 4). Co-defendant Northwest Trustee Services, Inc. joined that motion. (ECF 15 No. 6). The deadline to respond to that motion elapsed on December 1, 2016. See (id.); see also 16 LR 7-2(b). 17 Pro se plaintiff Ebony Biddle (“Biddle”) did not submit a timely response to that motion; 18 instead, Biddle submitted a notice of bankruptcy on December 5, 2016. (ECF No. 9). That filing 19 asserts that “[p]ursuant to 11 U.S.C. Section 362, the above-captioned matter is [automatically 20 stayed] as against [Biddle].” (ECF No. 9 at 1). 21 On December 14, 2016, BANA responded to the notice of bankruptcy, arguing that the 22 bankruptcy code’s automatic stay does not apply here “[b]ecause this action was filed by Plaintiff 23 for affirmative damages and relief against BANA, and BANA has lodged no counterclaims against 24 Plaintiff.” (ECF No. 13 at 1). BANA contends that this action is not one “against the debtor,” per 25 11 U.S.C. § 362(a) and requests this court to grant its motion to dismiss as unopposed pursuant to 26 Local Rule 7-2(d). (Id. at 1–2). 27 As an initial matter, this court agrees with BANA’s argument that plaintiff’s automatic stay 28 does not prevent adjudication of BANA’s motion to dismiss. See In re White, 186 B.R. 700, 704 James C. Mahan U.S. District Judge 1 (B.A.P. 9th Cir. 1995) (“[T]he primary purpose of § 362 is not applicable to offensive actions by 2 the debtor in possession or bankruptcy trustee.); see also In re Merrick, 175 B.R. 333, 336–37 3 (B.A.P. 9th Cir. 1994) (citing Martin–Trigona v. Champion Fed. Sav. & Loan Ass’n., 892 F.2d 4 575, 577 (7th Cir. 1989) (considering the purpose of the automatic stay within debtor-initiated 5 litigation)). Therefore, this court considers BANA’s motion to dismiss as unopposed and will 6 proceed accordingly. 7 The local rules have the force of law. See United States v. Hvass, 355 U.S. 570, 574–575 8 (1958). Under Local Rule 7-2(d), “[t]he failure of an opposing party to file points and authorities 9 in response to any motion . . . constitutes a consent to the granting of the motion.” The Ninth 10 Circuit instructs that a district court must weigh several factors before granting a motion filed 11 pursuant to Federal Rule of Civil Procedure 12 because a party failed to comply with a local rule: 12 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 13 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 14 cases o[n] their merits; and (5) the availability of less drastic sanctions.” Ghazali v. Moran, 46 15 F.3d 52, 53 (9th Cir. 1995) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)) 16 (discussing a Nevada local rule construing a failure to oppose a motion as effectively consenting 17 to the granting of that motion); see also Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003) 18 (indicating that Ghazali provides the applicable rule for evaluating a Rule 12 motion to dismiss in 19 light of a local rule authorizing dismissal). 20 This court finds that granting BANA’s motion to dismiss would protect the public’s interest 21 in the expeditious resolution of litigation. See Ghazali, 46 F.3d at 53. This court also finds that 22 granting BANA’s motion to dismiss would permit the court to effectively manage its docket. See 23 id. Additionally, BANA would be prejudiced if the court did not rule on the present motion 24 because it would be forced to wait for Biddle—who initiated this case—to resolve the present 25 action. See id. 26 This court acknowledges the public policy favoring the disposition of cases on their merits. 27 See id. However, dismissal is an appropriate sanction in this circumstance because more than half 28 of a year has elapsed since the expiration of Biddle’s response deadline, and Biddle has yet to file James C. Mahan U.S. District Judge -2- 1 an opposition to BANA’s motion to dismiss. Indeed, “pro se litigants are bound by the rules of 2 procedure.” Id. at 54. 3 4 5 6 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. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the motion to dismiss (ECF No. 4) be, and the same hereby is, GRANTED, without prejudice. 7 The clerk shall enter judgment accordingly and close the case. 8 DATED August 1, 2017. 9 10 __________________________________________ UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -3-

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