Filed: Nov. 30, 2016
Latest Update: Nov. 30, 2016
Summary: ORDER JAMES C. MAHAN , District Judge . Presently before the court is the matter of Gaston v. Bank of America, case number 2:16-cv-02389-JCM-NJK. On October 17, 2016, defendant Bank of America filed a motion to dismiss. (ECF No. 5). Responses were due by November 3, 2016. To date, pro se plaintiff Jonathan Gaston has yet to file a response. Pursuant to Local Rule 7-2(d), "the failure of an opposing party to file points and authorities in response to any motion . . . constitutes a cons
Summary: ORDER JAMES C. MAHAN , District Judge . Presently before the court is the matter of Gaston v. Bank of America, case number 2:16-cv-02389-JCM-NJK. On October 17, 2016, defendant Bank of America filed a motion to dismiss. (ECF No. 5). Responses were due by November 3, 2016. To date, pro se plaintiff Jonathan Gaston has yet to file a response. Pursuant to Local Rule 7-2(d), "the failure of an opposing party to file points and authorities in response to any motion . . . constitutes a conse..
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ORDER
JAMES C. MAHAN, District Judge.
Presently before the court is the matter of Gaston v. Bank of America, case number 2:16-cv-02389-JCM-NJK.
On October 17, 2016, defendant Bank of America filed a motion to dismiss. (ECF No. 5). Responses were due by November 3, 2016.
To date, pro se plaintiff Jonathan Gaston has yet to file a response. Pursuant to Local Rule 7-2(d), "the failure of an opposing party to file points and authorities in response to any motion . . . constitutes a consent to the granting of the motion." LR 7-2(d). Thus, by failing to file a timely response, plaintiff has consented to the granting of defendant's motion to dismiss. See United States v. Hvass, 355 U.S. 570, 574-75 (1958) (holding that local rules have the force of law).
Nevertheless, before dismissing an action for failure to comply with a local rule, the court considers 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 o[n] their merits; and (5) the availability of less drastic sanctions." Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).
After weighing these factors and reviewing the underlying filings, the court finds dismissal appropriate and will grant defendant's motion to dismiss. Dismissal serves the public's interest in expeditious resolution of litigation and allows the court to effectively manage its docket. While public policy favors the disposition of cases on their merits, forcing defendant to wait for plaintiff, who has been unresponsive in the proceedings thus far, would likely prejudice the defendant. Approximately one month has elapsed since the expiration of plaintiff's response deadline, and plaintiff has yet to file an opposition to defendant's motion to dismiss. While the court acknowledges that plaintiff is appearing pro se, pro se litigants are nonetheless bound by the same rules of procedure. See id. at 54.
Accordingly,
IT IS HEREBY ORDERED that defendant's motion to dismiss (ECF No. 5) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that plaintiff's complaint (ECF No. 1-1) be, and the same hereby is, DISMISSED WITHOUT PREJUDICE.
The clerk shall close the case.
