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Tamra L. Tveit v. Richard Natelson

March 16, 2012

TAMRA L. TVEIT, PLAINTIFF,
v.
RICHARD NATELSON, DEFENDANT.



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

MEMORANDUM DECISION AND ORDER

Pending before the Court in the above-entitled matter is Defendant Richard Natelson's ("Natelson") motion to dismiss (Dkt. 9). The motion was filed on February 15, 2012 and the certificate of service indicates the motion was mailed to Plaintiff at the address on the docket as well as a street address. Plaintiff Tamra Tveit's ("Tveit") response to the motion was due by March 12, 2012. As of March 13, 2012, no response has been filed by Plaintiff.

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.

FACTUAL BACKGROUND

Tveit filed her Complaint in this matter on June 1, 2011 (Dkt. 1). Plaintiff alleges medical malpractice by Defendant Natelson. Natelson is an employee of Steele Memorial Medical Center which is owned and operated by Lemhi County.

Defendant alleges Tveit failed to properly serve the Complaint within 120 days as required by Fed. R. Civ. P. 4(m). The Court requested Plaintiff to show cause why she failed to timely serve the Complaint by filing an explanation by October 31, 2011. Plaintiff did not file her explanation until December 23, 2011 (Dkt. 5).

Additionally, Defendant maintains that the Complaint should be dismissed as Plaintiff has failed to comply with the mandatory condition precedent of notice pursuant to the Idaho Tort Claims Act and this requires dismissal of the pending Complaint.

LACK OF MEMORANDUM IN RESPONSE

The Local Rules of Civil Practice before the United States District Court for the District of Idaho provide in relevant part:

The responding party must serve and file a response brief . . . . The responding parties must serve and file with the response brief any affidavits, copies of all photographs, and documentary evidence on which the responding party intends to rely.

D. Id. L. Civ. R. 7.1(c)(1)(emphasis added).

Failure to file a response may be deemed to constitute consent to the granting of the pending motion. D. Id. L. Civ. R. 7.1(e). A motion to dismiss can be granted 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 ...


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