Zimmerman v. D & C Incorporated

Filing 24

ORDER Granting Defendant's 20 Motion to Dismiss. Plaintiff's 1 Complaint is DISMISSED without prejudice. The clerk shall enter judgment accordingly. Signed by Chief Judge Gloria M. Navarro on 6/9/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEVIN ZIMMERMAN,

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Plaintiff,
vs.

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D & C INCORPORATED,

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Defendant.

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Case No.: 2:17-cv-00524-GMN-GWF
ORDER

Before the Court is the Motion to Dismiss, (ECF No. 20), filed by Defendant D & C

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Incorporated (“Defendant”). Plaintiff Kevin Zimmerman (“Plaintiff”) has failed to file a

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Response to the Motion to Dismiss. For the reasons that follow, the Court GRANTS

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Defendant’s Motion to Dismiss.

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I.

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BACKGROUND
Plaintiff filed this lawsuit on February 22, 2017. (App. For Leave to Proceed In Forma

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Pauperis, ECF No. 1). On May 15, 2017, Defendant filed a Motion to Dismiss. (ECF No. 20).

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

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

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response. Accordingly, Plaintiff had until May 29, 2017, to file a response. Not only did

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Plaintiff fail to meet this deadline, Plaintiff has failed to file any response at all.

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II.

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

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

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

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

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

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

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

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

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defendants/respondents; (4) the availability of less drastic sanctions; and (5) the public policy

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favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.

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2002).

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

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

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

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

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

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

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

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dismissal of Plaintiff’s Complaint without prejudice.
The fifth factor also does not weigh in favor of Plaintiff because it is not clear that this

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

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

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factors discussed above weighs in favor of dismissal.

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III.

CONCLUSION
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, (ECF No. 20), is

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GRANTED. Plaintiff’s Complaint, (ECF No. 11), is DISMISSED without prejudice. The

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clerk shall enter judgment accordingly.

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DATED this ____ day of June, 2017.

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

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