United States District Court, D. Montana, Butte Division
MICHAEL McDONALD, et. al., Plaintiffs and Counter-Defendants,
MOUNTAIN WEST STEEL, LLC, Defendant and Counter-Claimant.
MORRIS UNITED STATES DISTRICT COURT JUDGE.
Michael McDonald, et. al. (“Plaintiffs”) move
this Court to dismiss the counterclaims (Doc. 3) of
Defendant/Counter-Claimant Mountain West Steel, LLC
(“Mountain West”) with prejudice for failure to
state a claim upon which relief can be granted under Federal
Rule of Civil Procedure 12(b)(6) and Local Rule 7.1. (Doc.
18.) Mountain West opposes this motion. (Doc. 18.)
West filed the following counterclaims against Plaintiffs on
September 18, 2017: (1) slander/defamation; (2) tortious
interference with business; (3) fraud/negligent
representation; (4) unjust enrichment; (5) breach of
contract; and (6) breach of the covenant of good faith and
fair dealing. (Doc. 3.) Plaintiffs filed a Motion to Dismiss
Mountain West's Counterclaims on March 12, 2018. (Doc.
18.) Mountain West did not respond to the motion. The Court
ordered a telephonic status conference set for May 16, 2018,
to discuss whether counsel for Mountain West intended to
respond to the motion. The Court convened its telephonic
status conference on May 16, 2018. Counsel for Mountain West
failed to appear. Counsel for Mountain West has yet to file
response briefs or communicate with the Court regarding the
motion. For the following reasons, the Court will grant
Plaintiffs' Motion to Dismiss.
to follow a district court's local rules provides
adequate grounds for dismissal. Stamey v. Ravalli County
Commission, No. 9:17-CV-87-DLC, 2017 WL 6040811, at *1
(D. Mont. Dec. 6, 2017) (citing Ghazali v. Moran, 46
F.3d 52, 53 (9th Cir. 1995). Local Rule 7.1 states that
responses to motions to dismiss must be filed within 21 days
after the motion was filed. D. Mont. Loc. R. 7.1(d)(1). The
moving party has the option to file a reply within 14 days
after the filing of the response. Id. No. further
briefing will be permitted without prior leave and the motion
is deemed ripe for ruling at the close of the time for
Plaintiffs filed their motion to dismiss on March 12, 2018.
The period for Mountain West to respond lapsed on April 2,
2018. As noted above, counsel for Mountain West filed no
further briefing. Counsel for Mountain West did not seek an
extension of time in which to file a brief. The Court deems
the motion ripe for ruling as of April 2, 2018.
Court must determine whether the following factors weigh in
favor of dismissal: “(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.” Ghazali, 46 F.3d at 53
(quoting Henderson v. Duncan, 779 F.2d 1421, 1423
(9th Cir. 1986)). An analysis of these five factors supports
dismissal in this case.
first two factors weigh heavily in favor of dismissal. First,
dismissal of the counterclaims contributes to the expeditious
resolution of this litigation and, second, facilitates the
Court's need to manage its docket by freeing judicial
resources. The Court already has spent considerable resources
accommodating Mountain West.
October 26, 2017, the Court ordered the parties to file a
preliminary pretrial statement by November 22, 2017, in
advance of the pretrial conference set for November 29, 2017.
(Doc. 6.) Mountain West failed to submit a preliminary
pretrial statement and moved to continue the pretrial
conference. (Doc. 10.) The Court obliged and granted the
motion. (Doc. 11.)
conference, counsel for Mountain West advised the Court that
his preliminary pretrial statement would be filed by December
8, 2017. (Doc. 15.) Counsel failed to file the statement as
stated. The Court ordered that the preliminary pretrial
statement be filed by December 15, 2017, or show good cause
as to why counsel had failed to file the statement. (Doc.
third factor, risk of prejudice to the defendants, weighs in
favor of dismissal. “Limited delays and the prejudice
to a defendant from the pendency of a lawsuit are realities
of the system that have to be accepted, provided the
prejudice is not compounded by ‘unreasonable'
delays.” Pagtalunan v. Galaza, 291 F.3d 639,
642 (9th Cir. 2002) (citing Yourish v. California
Amplifier, 191 F.3d 983, 991 (9th Cir. 1999)). Almost
three months have lapsed since Plaintiffs filed their motion.
Mountain West's failure to respond unreasonably delays
the Plaintiffs' ability to gather the witnesses and
evidence necessary to combat the counterclaims. This factor
weighs in favor of dismissal.
the fourth factor, Mountain West's failure to respond
admittedly limits the analysis of the merits of Mountain
West's counterclaims. Mountain West failed to take
advantage of multiple chances to file the brief in opposition
of the Plaintiffs' motion. Mountain West has not filed a
response or request an extension of time in which to respond.
fifth factor also weighs in favor of dismissal. The Court
finds no reason to extend Mountain West's deadline to
respond. Mountain West already has been given ample time to
file a response and an opportunity to communicate with this
Court about the status of the response. Counsel for Mountain
West failed to take advantage of this latitude. The Court
declines to issue an extension sua sponte.
Court finds that the five factors weigh in favor of dismissal
for noncompliance with Local Rule 7.1(d) by failing to
respond to Plaintiffs' Motion to Dismiss Defendant's
Counterclaims. The counterclaims asserted by Mountain West
appear to be fatally defective as a matter of law. The Court
has reviewed Plaintiffs' Motion to Dismiss