United States District Court, D. Montana, Billings Division
TIMOTHY J. CAVAN United States Magistrate Judge
the Court are two motions to dismiss, one filed on April 24,
2017, by defendant Nationstar Mortgage, LLC
(“Nationstar”) (Doc. 3) and another filed on June
27, 2017, by defendants Bank of America Corp. and Bank of
America, N.A. (collectively, “BANA”) (when
referring to BANA and Nationstar, “Defendants”)
(Doc. 8). Each motion seeks the dismissal in full of the
Complaint and Demand for Jury Trial (Doc. 6)
(“Complaint”) filed by plaintiffs Mark Leischner
and Tammy Leischner (collectively, “Plaintiffs”).
For the reasons that follow, the Court finds that other
circumstances command the dismissal of this case, and
therefore denies Defendants' motions as moot.
Mark Leischner previously brought an action against these
same Defendants in the Montana Thirteenth Judicial District
Court in September 2014. (Doc. 4-1.) The action was promptly
removed to this Court (Doc. 4-2), and Defendant BANA moved to
dismiss the complaint. (Doc. 4-3). Without ever responding to
BANA's motion, Mark Leischner ultimately filed a motion
to dismiss his complaint, without prejudice. (Doc. 4-7). The
motion was granted on February 4, 2015. (Doc. 4-8.)
two years later, Plaintiffs filed their present Complaint in
the Montana Thirteenth Judicial District Court on January 13,
2017. (Doc. 1-1.) The present Complaint is nearly identical
to the 2014 complaint. Defendant Nationstar again removed the
case to this Court on April 24, 2017 (Doc. 1), and
immediately filed its Motion to Dismiss (Doc. 3;
“Nationstar Motion”). BANA filed its Motion to
Dismiss (Doc. 8; “BANA Motion”) on June 27, 2017.
the Local Rules of Procedure for the District of Montana
(“L.R.”), Plaintiffs' responses were due
within 21 days after the motions were filed. L.R.
7.1(d)(1)(B)(i). Plaintiffs have not responded to either
next noteworthy filing occurred on August 7, 2017, when the
Clerk of Court filed the various consent forms evincing the
parties' agreement to consent to the jurisdiction of the
undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(c) and Fed.R.Civ.P. 73. (Doc. 12.) That docket entry is
significant because it contains the signatures of both
Plaintiffs, indicating that they have received correspondence
from the Court.
September 21, 2017, nearly five months after the Nationstar
Motion and three months after the BANA Motion, the Court
entered an Order requiring Plaintiffs to show cause, on or
before October 5, 2017, why the Court should not deem
Defendants' motions to be well-taken in accordance with
L.R. 7.1(d)(1)(B)(ii), which provides that “failure to
file a response brief may be deemed an admission that the
motion is well-taken.” (Doc. 14.) The Court's Order
explicitly warned Plaintiffs that failure to respond to the
Order may result in the dismissal of this matter with
prejudice. (Id. at 2.) Plaintiffs' response to
the Court's Order is now nearly two months overdue, and
Plaintiffs still have not responded to the Court's order,
or to either of Defendants' motions.
Civ. P. 41(b) authorizes the Court to dismiss an action
“[i]f the plaintiff fails to prosecute or to comply
with [the Federal Rules of Civil Procedure] or a court
order[.]” Even though the rule states that a defendant
may move for dismissal under the specified circumstances, it
is well-settled that the Court may dismiss a case on its own
motion without awaiting a defense motion. See Link v.
Wabash R.R., 370 U.S. 626, 633 (1962); Hells Canyon
Preservation Council v. United States Forest Serv., 403
F.3d 683, 689 (9th Cir. 2005).
considering dismissal under Rule 41(b), a court must weigh
five 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 availability of less drastic
alternatives; and (5) the public policy favoring disposition
of cases on their merits.” Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002), cert.
denied, (2003) (citing Ferdik v. Bonzelet, 963
F.2d 1258, 1260-61 (9th Cir. 1992)).
public's interest in expeditious resolution of litigation
always favors dismissal.” Yourish v. California
Amplifier, 191 F.3d 983, 990 (9th Cir. 1990). Here,
Plaintiffs have given no reason for their failure to respond
to Defendants' motions, failure to comply with the