Brown et al v. SMCE Mortgage Bankers, Inc. et al

Filing 13

ORDER granting 11 Defendants' Motion to Dismiss. Plaintiffs' Complaint 1 is DISMISSED in its entirety. Signed by Judge Larry R. Hicks on 10/16/2012. (Copies have been distributed pursuant to the NEF - HJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
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TERRY and SUSAN BROWN
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Plaintiffs,
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v.
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SMCE MORTGAGE BANKERS, INC.; et al., )
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Defendants.
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3:12-cv-0121-LRH-VPC
ORDER

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Before the court is defendants Mortgage Electronic Registration Systems, Inc. (MERS); Bank of

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New York-Mellon (BNY-Mellon); and ReconTrust Company, N.A.’s (ReconTrust) motion to dismiss.

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Doc. #11. Plaintiffs Terry and Susan Brown (“the Browns”) did not file an opposition.

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In April 2005, the Browns refinanced real property through a mortgage note and deed of trust

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originated by defendant SMCE Mortgage Bankers, Inc. Eventually, the Browns defaulted on the

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mortgage note and defendants initiated non-judicial foreclosure proceedings. Subsequently, the Browns

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filed a complaint against defendants. Doc. #1, Exhibit 1. Thereafter, defendants filed the present motion to

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dismiss, which the Browns did not oppose.

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While the failure of an opposing party to file points and authorities in response to any motion shall

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constitute a consent to the granting of the motion under LR 7-2(d), the Browns’ failure to file an

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opposition, in and of itself, is an insufficient ground for dismissal. See Ghazali v. Moran, 46 F.3d 52, 53

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(9th Cir. 1995). Before dismissing a case, a district court is required to weigh several factors: (1) the

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public’s interest in the expeditious resolution of litigation; (2) the court’s need to manage its docket; (3)

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the risk of prejudice to the defendant; (4) the public policy favoring disposition of cases on their merits;

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and (5) the availability of less dramatic sanctions. Id.

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Here, these factors weigh in favor of dismissal. The need for the expeditious resolution of

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cases on the court’s docket is strong. Defendants have an interest in resolving this matter in a timely

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manner. Further, there is a lack of prejudice to the Browns because they have shown an unwillingness to

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continue litigating this complaint which weighs in favor of granting the motion. Additionally, although public

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policy favors a resolution on the merits, the court finds that dismissal is warranted in light of these other

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considerations. Therefore, the court shall grant defendants’ motion to dismiss and dismiss the Browns’

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complaint in its entirety.

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IT IS THEREFORE ORDERED that defendants’ motion to dismiss (Doc. #11) is GRANTED.
Plaintiffs’ complaint (Doc. #1, Exhibit 1) is DISMISSED in its entirety.

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IT IS SO ORDERED.

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DATED this 16th day of October, 2012.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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