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Labossiere v. GMAC Mortgage

October 21, 2010

JOHN LABOSSIERE, PLAINTIFF,
v.
GMAC MORTGAGE, EXECUTIVE TRUSTEE SERVICES, LLC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., (MERS) FIRST AMERICAN, DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS, DEFENDANTS.



The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge

MEMORANDUM ORDER

Pending before the Court in the above-entitled matter are Defendants' Motion to Dismiss (Docket No. 12) and Motion to Take Judicial Notice (Docket No. 13). The motions were served on Plaintiff at two different addresses. Plaintiff was sent a Notice to Pro Se Litigants of the Summary Judgment Rule Requirement (Docket No. 14) by the Court. Plaintiff has failed to file a response to the pending motions. Plaintiff has also failed to pay the required $25 per month towards the filing fee as required by the Court's Order on July 7, 2010 (Docket No. 8).

Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.

Failure to Respond

The Local Rules of Civil Practice before the United States District Court for the District of Idaho provide that a party must serve and file a response brief within twenty-one days after service by the moving party. Dist. Idaho Loc. Civ. R. 7.1(c)(1). Moreover, the failure to file a responsive brief may be deemed consent to the granting of the requested relief in the motion:

Effects of Failure to Comply with the Rules of Motion Practice. Failure by the moving party to file any documents required to be filed under this rule in a timely manner may be deemed a waiver by the moving party of the pleading or motion. In the event an adverse party fails to file any response documents required to be filed under this rule in a timely manner, such failure may be deemed to constitute a consent to the sustaining of said pleading or the granting of said motion or other application. In addition, the Court, upon motion or its own initiative, may impose sanctions in the form of reasonable expenses incurred, including attorney fees, upon the adverse party and/or counsel for failure to comply with this rule.

Dist. Idaho Loc. Civ. R. 7.1(e). Pro se litigants are held to same procedural rules as counseled litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, Plaintiff's failure to comply with the applicable local rules cannot be excused because he is proceeding as a pro se litigant.

The case law also supports the court's authority to grant a motion to dismiss for failure to comply with local rules. Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995). The Ninth Circuit has set forth the factors to be weighed in dismissing a case:

Before 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."

Id. at 53 citing Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).

Factual Background

Plaintiff filed his Complaint seeking relief regarding the foreclosure of his real property. The Defendants have filed a motion to dismiss arguing the Plaintiff's Complaint should be dismissed based on the doctrine of claim preclusion since the legality of the foreclosure has already been resolved in state court actions. Additionally, Defendants argue the Complaint should be dismissed based on a failure to state a claim upon which relief can be granted.

Analysis

In reviewing the record in this matter, the Court finds the Defendants' have established that Plaintiff has presented his arguments regarding the foreclosure of his real property and such arguments have been rejected by the state court. Therefore, the doctrine of claim preclusion prohibits ...


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