United States District Court, D. Arizona
Dominic W. Lanza, United States District Judge
April 2019, Plaintiffs Rex and Pamela Caldwell filed a
complaint in the Maricopa County Superior Court against
Defendants Specialized Loan Servicing, LLC and U.S. Bank.
(Doc. 1-3 at 12-15.) In a nutshell, the complaint seeks a
declaration that Plaintiffs own their home “free and
clear of any estate, title, lien or other interest . . . . by
Defendants” and an injunction preventing Defendants
from seeking to assert such a claim. (Id. at 14.)
26, 2019, Plaintiffs served the complaint, and other
documents, on Defendants. (Doc. 1 ¶ 2.)
August 23, 2019, Defendants timely removed the action to
federal court. (Doc. 1.)
August 30, 2019, Defendants filed a motion to dismiss under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc.
8.) The motion argues that “Plaintiffs have no basis
for the relief they seek, as their 2015 bankruptcy did not
discharge Defendants’ lien on their property and the
applicable statutes of limitations on which they rely have
not expired. Accordingly, this matter should be dismissed in
its entirety.” (Id. at 2.) The motion was also
accompanied by a certificate of conferral in which
Defendants’ counsel avowed that he “communicated
with counsel for Plaintiffs by e-mail on August 29, 2019 . .
. to determine whether an amendment could cure
Plaintiffs’ Complaint and the parties have been unable
to agree that the pleading is curable by a permissible
amendment.” (Id. at 8-9.)
this Court’s local rules, Plaintiffs’ response to
the motion to dismiss was due within 14 days of when the
motion was filed-that is, by September 13, 2019. See
LRCiv 7.2(c). However, no response has been
Plaintiffs’ failure to response to the motion to
dismiss, the Court will dismiss this action. First, this
outcome is authorized by LRCiv 7.2(i), which provides that a
party’s failure to respond to a motion “may be
deemed a consent to the . . . granting of the motion and the
Court may dispose of the motion summarily.” Second,
this outcome is further supported by the Court’s
inherent authority to order dismissal based on a
litigant’s failure to adhere to and follow the
Court’s rules-here, LRCiv 7.2(c). See generally
Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)
(“Failure to follow a district court’s local
rules is a proper ground for dismissal.”); Wystrach
v. Ciachurski, 267 F. App’x 606, 608 (9th Cir.
dismissing the action, the district court is required to
weigh several factors: (1) the public’s interest in
expeditious resolution of litigation; (2) the court’s
need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of
cases [on] their merits; and (5) the availability of less
drastic sanctions.” Ghazali, 46 F.3d at 53.
“The sub-parts of the fifth factor are whether the
court has considered lesser sanctions, whether it tried them,
and whether it warned the recalcitrant party about the
possibility of case-dispositive sanctions.” Conn.
Gen. Life Ins. Co. v. New Images of Beverly Hills, 482
F.3d 1091, 1096 (9th Cir. 2007). Dismissal is proper where
“at least four factors support dismissal, or where at
least three factors strongly support dismissal.”
Yourish v. California Amplifier, 191 F.3d 983, 990
(9th Cir. 1999) (internal quotation marks omitted).
Nevertheless, “[t]his ‘test’ is not
mechanical. It provides the district court with a way to
think about what to do, not a set of conditions precedent . .
. or a script that the district court must follow.”
Conn. Gen. Life, 482 F.3d at 1096.
the first factor, “the public’s interest in
expeditious resolution of litigation always favors
dismissal” and can “strongly” support
dismissal. Yourish, 191 F.3d at 990.
the second factor, Plaintiffs’ failure to respond to
the motion to dismiss, and to the pending motions in the
related case, has caused needless consumption of court
resources. Wystrach, 267 F. App’x at 608;
Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.
2002) (finding this factor weighed in favor of dismissal
where plaintiff’s noncompliance “consumed some of
the court’s time that could have been devoted to other
cases on the docket”). Plaintiffs did not request an
extension and have offered no explanation for their failure
to respond. The Court finds that these two factors strongly
third factor, risk of prejudice to Defendants, also supports
dismissal. Plaintiffs’ response to the motion to
dismiss was due on September 13, 2019, so this case has been
delayed by Plaintiffs’ failure to respond. The delay
risks prejudice to Defendants. Parker v. Shaw &
Lines, LLC, 2010 WL 1640963, *2 (D. Ariz. 2010)
(“It is axiomatic that, as time passes, it becomes
harder for Defendants to defend the action as witnesses
become unavailable and memories fade.”).
fourth factor weighs against summary dismissal.
“Because public policy favors disposition of cases on
their merits, this factor weighs against dismissal.”
Wystrach, 267 F. App’x at 608.
fifth factor requires the Court to consider whether less
drastic sanctions could be appropriate, whether it has
already tried them, and whether the noncompliant party has
been warned that the case could be dismissed for failure to
comply. Conn. Gen. Life, 482 F.3d at 1096. Here, a
local rule expressly permits the Court to “dispose of
the motion summarily” when a party fails to “file
the required answering memoranda” to a motion. LRCiv
7.2(i). It is within the Court’s discretion to dismiss
the action summarily at this juncture. Parker, 2010
WL 1640963, *2; see also United States v. Warren,
601 F.2d 471, 474 (9th Cir. 1979) (“Only in rare cases
will we question the exercise of discretion in connection
with the application of local rules.”).
Court has considered whether less drastic sanctions could be
appropriate in this case. Available alternatives include, for
example, “a formal reprimand, imposition of costs or
attorney fees, or an adjudication of the motion without the
benefit of plaintiffs’ arguments in opposition.”
Wystrach, 267 F. App’x at 608. Indeed,
“[dismissal is a harsh penalty and is to be imposed
only in extreme circumstances.” In re
Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d
1217, 1226 (9th Cir. 2006). Nevertheless, in these
circumstances, where Plaintiffs failed to respond to the
motion to dismiss, failed to respond to pending motions in
related cases, and have done nothing to prosecute the case
since it was removed, the Court finds that the fifth factor
does not weigh against summary dismissal. “[T]he
availability of less drastic sanctions does not necessitate
that those lesser sanctions be employed in the instant
matter.” Parker, 2010 WL 1640963, *2. The
Court will therefore grant summary dismissal. The ...