Filed: Jan. 27, 2015
Latest Update: Jan. 27, 2015
Summary: ORDER JAMES C. MAHAN, District Judge. Presently before the court is defendant D.R. Horton's motion to dismiss plaintiff's class action allegations. (Doc. # 6). Plaintiffs have not filed a response and the deadline to do so has passed. Also before the court is defendant's motion to stay litigation pending compliance with NRS 40.600. (Doc. # 5). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim for relief that is plausible
Summary: ORDER JAMES C. MAHAN, District Judge. Presently before the court is defendant D.R. Horton's motion to dismiss plaintiff's class action allegations. (Doc. # 6). Plaintiffs have not filed a response and the deadline to do so has passed. Also before the court is defendant's motion to stay litigation pending compliance with NRS 40.600. (Doc. # 5). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim for relief that is plausible o..
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ORDER
JAMES C. MAHAN, District Judge.
Presently before the court is defendant D.R. Horton's motion to dismiss plaintiff's class action allegations. (Doc. # 6). Plaintiffs have not filed a response and the deadline to do so has passed.
Also before the court is defendant's motion to stay litigation pending compliance with NRS 40.600. (Doc. # 5).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Where a complaint pleads facts that are `merely consistent' with a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (citing Bell Atlantic, 550 U.S. at 557). However, where there are well pled factual allegations, the court should assume their veracity and determine if they give rise to relief. Id. at 1950.
Pursuant to Local Rule 7-2, an opposing party must file points and authorities in response to a motion and failure to file a timely response constitutes the party's consent to the granting of the motion and is proper grounds for dismissal. See LR IB 7-2(d); United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). However, prior to dismissal, 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 of their merits; and (5) the availability of less drastic sanctions." Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (citing Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).
In light of plaintiff's failure to respond and weighing the factors identified in Ghazali, the court finds dismissal of plaintiffs' class action appropriate.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant D.R. Horton's motion to dismiss plaintiff's class action allegations (doc. # 6) be, and the same hereby, is GRANTED.
IT IS FURTHER ORDERED that plaintiffs' complaint (doc. # 1) be dismissed without prejudice.
IT IS FURTHER ORDERED that defendant's motion to stay litigation pending compliance with NRS 40.600 (doc. # 5) is hereby DENIED as moot.
