United States District Court, D. Nevada
JESUS O. TRUJILLO, Plaintiffs,
MESQUITE GAMING LLC, Defendants.
Presently before the court is defendant Mesquite Gaming’s motion to dismiss for failure of service of process. (Doc. # 6). Plaintiff’s response was due by July 13, 2015. Plaintiff has not filed a response or sought an extension from the court.
“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, an opposing party must file points and authorities in response to a motion and failure to file a timely response constitutes the party’s consent to the granting of the motion and is proper grounds for dismissal. See LR IB 7-2(d); United States 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)).
Federal Rule of Civil Procedure 4(m) provides: “If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice.”
Plaintiff filed his complaint on January 23, 2015. (Doc. # 1). On June 15, 2015, the clerk of the court provided notice to plaintiff that the action would be dismissed if plaintiff did not file proof of service of process by July 15, 2015. (Doc. # 5). To date, plaintiff has failed to file proof of service with the court as to defendant Mesquite Gaming.
In light of plaintiff s failure to respond and weighing the factors identified in Ghazali, the court finds dismissal of plaintiff s complaint against the moving defendants appropriate.
Accordingly, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant Mesquite Gaming’s motion to dismiss for failure of service of process (doc. # 6) be, and the same hereby is, GRANTED. The case is dismissed ...