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Raymond David Kilduff v. Mgm Resorts International D/B/A Aria

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA


April 30, 2013

RAYMOND DAVID KILDUFF,
PLAINTIFF(S),
v.
MGM RESORTS INTERNATIONAL D/B/A ARIA, DEFENDANT(S).

ORDER

Presently before the court is defendant MGM Resorts International's motion to dismiss. (Doc. # 19). Plaintiff has not filed a response, even though the deadline date for filing a response has passed.

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Where a complaint pleads facts that are 'merely consistent' with a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (citing Bell Atlantic, 550 U.S. at 557). However, where there are well pled factual allegations, the court should assume their veracity and determine if they give rise to relief. Id. at 1950.

Pursuant to Local Rule 7-2(d), an opposing party's failure to file a timely response to any motion constitutes the party's consent to the granting of the motion and is proper grounds for dismissal. U.S. v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). However, prior to dismissal, 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 of their merits; and (5) the availability of less drastic sanctions." Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (citing Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).

In light of the plaintiff's failure to respond and weighing the factors identified in Ghazali, the court finds dismissal appropriate.

Accordingly,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant MGM Resorts International's motion to dismiss (doc. # 19) be, and the same hereby, is GRANTED.

IT IS FURTHER ORDERED that the complaint is dismissed without prejudice. The clerk of the court shall enter judgment and close the case.

UNITED STATES DISTRICT JUDGE

20130430

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