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Leischner v. Bank of America Corp.

United States District Court, D. Montana, Billings Division

November 28, 2017

BANK OF AMERICA CORP.; BANK OF AMERICA, N.A., as successor by merger to BAC Home Loans Servicing, f/k/a Country Wide Homes Loans Servicing, LP; and NATIONSTAR MORTGAGE, LLC, Defendants.


          TIMOTHY J. CAVAN United States Magistrate Judge

         Before 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.

         I. Pertinent Facts

         Plaintiff 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.)

         Almost 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.

         Under 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 motion.

         The 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.

         On 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.

         II. Legal Standard

         Fed. R. 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).

         In 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)).

         III. Discussion

         A. Expeditious Resolution

         “The 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 Court's ...

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