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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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EBONY BIDDLE,

Case No. 2:16-CV-2582 JCM (PAL)

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Plaintiff(s),

ORDER

v.
BANK OF AMERICA, N.A., et al.,

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Defendant(s).

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Presently before the court is defendant Bank of America, N.A.’s (“BANA”) motion to

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dismiss. (ECF No. 4). Co-defendant Northwest Trustee Services, Inc. joined that motion. (ECF

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No. 6). The deadline to respond to that motion elapsed on December 1, 2016. See (id.); see also

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LR 7-2(b).

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Pro se plaintiff Ebony Biddle (“Biddle”) did not submit a timely response to that motion;

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instead, Biddle submitted a notice of bankruptcy on December 5, 2016. (ECF No. 9). That filing

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asserts that “[p]ursuant to 11 U.S.C. Section 362, the above-captioned matter is [automatically

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stayed] as against [Biddle].” (ECF No. 9 at 1).

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On December 14, 2016, BANA responded to the notice of bankruptcy, arguing that the

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bankruptcy code’s automatic stay does not apply here “[b]ecause this action was filed by Plaintiff

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for affirmative damages and relief against BANA, and BANA has lodged no counterclaims against

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Plaintiff.” (ECF No. 13 at 1). BANA contends that this action is not one “against the debtor,” per

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11 U.S.C. § 362(a) and requests this court to grant its motion to dismiss as unopposed pursuant to

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Local Rule 7-2(d). (Id. at 1–2).

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As an initial matter, this court agrees with BANA’s argument that plaintiff’s automatic stay

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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

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(B.A.P. 9th Cir. 1995) (“[T]he primary purpose of § 362 is not applicable to offensive actions by

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the debtor in possession or bankruptcy trustee.); see also In re Merrick, 175 B.R. 333, 336–37

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(B.A.P. 9th Cir. 1994) (citing Martin–Trigona v. Champion Fed. Sav. & Loan Ass’n., 892 F.2d

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575, 577 (7th Cir. 1989) (considering the purpose of the automatic stay within debtor-initiated

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litigation)). Therefore, this court considers BANA’s motion to dismiss as unopposed and will

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proceed accordingly.

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The local rules have the force of law. See United States v. Hvass, 355 U.S. 570, 574–575

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(1958). Under Local Rule 7-2(d), “[t]he failure of an opposing party to file points and authorities

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in response to any motion . . . constitutes a consent to the granting of the motion.” The Ninth

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

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

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

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

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

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F.3d 52, 53 (9th Cir. 1995) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986))

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(discussing a Nevada local rule construing a failure to oppose a motion as effectively consenting

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to the granting of that motion); see also Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003)

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(indicating that Ghazali provides the applicable rule for evaluating a Rule 12 motion to dismiss in

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light of a local rule authorizing dismissal).

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

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in the expeditious resolution of litigation. See Ghazali, 46 F.3d at 53. This court also finds that

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granting BANA’s motion to dismiss would permit the court to effectively manage its docket. See

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id. Additionally, BANA would be prejudiced if the court did not rule on the present motion

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because it would be forced to wait for Biddle—who initiated this case—to resolve the present

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action. See id.

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

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See id. However, dismissal is an appropriate sanction in this circumstance because more than half

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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

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

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procedure.” Id. at 54.

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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.

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The clerk shall enter judgment accordingly and close the case.

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DATED August 1, 2017.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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