O 1

2 3 4 5 6 7 8 United States District Court 9 Central District of California 10 11 THE BANK OF NEW YORK MELLON, Case № 2:18-cv-04072-ODW (ASx)

12 Plaintiff, ORDER GRANTING COUNTER- 13 DEFENDANTS’ MOTION TO v. DISMISS [188]; 14 DENYING COUNTER- 15 PAULINE WHITE, et al., DEFENDANTS’ MOTION TO 16 STRIKE [187]; AND Defendants. DENYING EPHIPHANY’S 17 MOTION TO AMEND [194, 195] 18 PAULINE WHITE et al.,

19 Counter-Claimants, 20 21 v.

22 THE BANK OF NEW YORK MELLON, 23 et al.

24 Counter-Defendants 25 26 I. INTRODUCTION 27 Plaintiff and Counter-Defendants move to dismiss the Counterclaim filed by 28 Counter-Claimant Ephiphany Limited LLC, and to strike portions thereof. (Mot. to 1 Dismiss (“Mot.”), ECF No. 188; Mot. to Strike (“MTS”), ECF No. 187.) Ephiphany 2 did not oppose either motion. For the reasons that follow, the Court GRANTS the 3 Motion to Dismiss and DENIES the Motion to Strike as moot.1 4 II. BACKGROUND 5 On May 16, 2018, Plaintiff The Bank of New York Mellon (“BONY” or 6 “Plaintiff”) initiated this action against Defendant Pauline White (“White”), asserting 7 five claims for judicial foreclosure, breach of contract, ejectment, receivership, and 8 declaratory relief. (Compl., ECF No. 1.) On August 28, 2018, White filed an answer 9 and counterclaim, asserting twenty-seven counter-claims against BONY, Bayview 10 Loan Servicing, Inc., and Select Portfolio Servicing, Inc. (White’s Answer and 11 Countercl., ECF No. 18.) On February 27, 2020, BONY amended the Complaint to 12 add Ephiphany Limited LLC as DOE 1 as a nominal defendant, as well as United 13 States of America and City of Monrovia as Does 2 and 3, respectively. (Am. to 14 Compl., ECF No. 128.) On April 29, 2020, Ephiphany filed an answer and 15 counterclaim, asserting the same twenty-seven counter-claims as White against 16 Counter-Defendants BONY, Bayview, Select, and Shellpoint Mortgage Servicing 17 LLC (“Counter-Defendants”). (Ephiphany’s Answer and Countercl., ECF No. 183.) 18 Counter-Defendants move to dismiss Ephiphany’s counter-claims for failure to 19 state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Mot. 8.) 20 Counter-Defendants also move to strike the portions of Ephiphany’s counter-claims 21 seeking punitive damages. (See Notice of MTS 2.) Counter-Defendants noticed the 22 hearing on the motions for June 22, 2020, at 1:30 p.m. Thus, pursuant to Local 23 Rule 7-9, Ephiphany’s oppositions were due no later than June 1, 2020. See C.D. Cal. 24 L.R. 7-9 (requiring oppositions to be filed no later than twenty-one days before the 25 motion hearing). However, to date, Ephiphany has filed no opposition. 26 27

28 1 After carefully considering the papers filed in connection with the motions, the Court deemed the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 1 III. EPHIPHANY’S FAILURE TO OPPOSE WARRANTS DISMISSAL 2 Central District of California Local Rule 7-12 provides that the Court “may 3 decline to consider any memorandum or other document not filed within the deadline 4 set by order or local rule.” C.D. Cal. L.R. 7-12 (“The failure to file [a responsive 5 document], or the failure to file it within the deadline, may be deemed consent to the 6 granting or denial of the motion . . . .”); Ghazali v. Moran,

(9th Cir. 7 1995) (affirming dismissal on the basis of unopposed motion pursuant to local rule). 8 Prior to dismissing an action pursuant to a local rule, courts must weigh: 9 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 10 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 11 favoring disposition of cases o[n] their merits; and (5) the availability of less drastic 12 sanctions.” Ghazali,

(quoting Henderson v. Duncan,

, 13 1423 (9th Cir. 1986)). “Explicit findings with respect to these factors are not 14 required.” Ismail v. Cty. of Orange, SACV 10-00901 VBF (AJW),

12964893, at *1 (C.D. Cal. Nov. 7, 2012) (citing Henderson,

; 16 accord, Malone v. U.S. Postal Serv.,

(9th Cir. 1987), cert. denied, 17

(1988)). In Ghazali, the Ninth Circuit found these factors satisfied 18 where the plaintiff received notice of the motion, had “ample opportunity to respond,” 19 yet failed to do so. See Ghazali,

. 20 The Court has considered the Ghazali factors enumerated above and that 21 consideration convinces the Court of the propriety of granting the motion to dismiss. 22 Additionally, Ephiphany received notice of the motions and had ample opportunity to 23 respond. Ephiphany is represented by counsel, Ms. White, a registered CM/ECF user 24 who receives notice of electronic filings in this action. Thus, Ephiphany received 25 notice of the motions. Further, Ephiphany was recently engaged in this matter, as it 26 filed its counter-claims on April 29, 2020, yet has failed to oppose the motions. 27 Counter-Defendants set the motions to be heard on June 22, 2020, meaning any 28 opposition was due no later than June 1, 2020. See C.D. Cal. L.R. 7-9. After the time 1 for briefing had closed, on June 9, 2020, the Court took the motions under submission 2 having received no opposition. (ECF No. 192.) Ten days later, on June 19, 2020, Ms. 3 White filed a declaration “Re: Notice to The Court,” concerning the pending motions. 4 (Decl. of Pauline White (“White Decl.”), ECF No. 193.) As it was filed after the time 5 for briefing on the motions had closed, “[t]he Court may decline to consider” Ms. 6 White’s untimely declaration. C.D. Cal. L.R. 7-12. Nevertheless, the Court has 7 reviewed Ms. White’s declaration and finds it provides no excuse for Ephiphany’s 8 failure to oppose. 9 Ms. White asserts Counter-Defendants failed to meet and confer pursuant to 10 Local Rule 7-3 and argues the Court should strike the motions. (White Decl. 3.) 11 However, Ms. White concedes that Counter-Defendants corresponded with her 12 regarding alleged pleading deficiencies seven days in advance of filing the motions. 13 (White Decl. 3.) Counsel need only “discuss thoroughly, preferably in person, the 14 substance of the contemplated motion and any potential resolution.” C.D. Cal. 15 L.R. 7-3. Given the history and circumstances of this litigation, the Court finds 16 Counter-Defendants’ meet and confer correspondence sufficient for purposes of Local 17 Rule 7-3. 18 Ms. White also claims she “was not aware that any motions were still pending.” 19 (White Decl. 4.) The Court is unpersuaded. Counter-Defendants filed their Motion to 20 Dismiss and Motion to Strike on May 20, 2020. (See ECF Nos. 187, 188.) At the 21 same time, they filed two additional motions in error, which they immediately 22 withdrew. (See Mot. to Dismiss, ECF No. 186; Mot. to Withdraw, ECF No. 189; 23 Notice of Withdrawal, ECF No. 190.) The Court issued an Order expressly clarifying 24 that only “the Motion to Dismiss at ECF Nos. 186, 186-1, and 186-2, and the Motion 25 to Withdraw at ECF Nos. 189, 189-1, and 189-2” were withdrawn. (Order, ECF 26 No. 191.) Thus, Counter-Defendants’ Motion to Strike (ECF No. 187) and Motion to 27 Dismiss (ECF No. 188) remained pending and on calendar for a June 22, 2020 hearing 28 1 | until the Court took them under submission. A cursory review of the case docket 2 | would have revealed the pending motions.” 3 Ms. White is a licensed attorney and is held to the standards of a practitioner 4|| before this Court. As the Court has noted on prior occasions, professed confusion 5 || concerning proceedings in this matter is no excuse for the failure to file required 6 || documents. 7 Ephiphany received notice of the motions and had ample opportunity to oppose 8 | yet failed to do so. Neither Ms. White nor Ephiphany offers any reasonable excuse for Ephiphany’s failure to oppose Counter-Defendants’ motions. Further, 10 | consideration of the Ghazali factors convinces the Court of the propriety of granting 11 || the motion to dismiss. Accordingly, pursuant to Local Rule 7-12 and Ghazali, the 12 | Court GRANTS Counter-Defendants’ Motion to Dismiss. 13 IV. CONCLUSION 14 For the foregoing reasons, the Court GRANTS Counter-Defendants’ Motion to 15 || Dismiss and DISMISSES Ephiphany’s Counterclaim. (ECF No. 188.) The Court 16 || therefore DENIES as moot Counter-Defendants’ Motion to Strike and Ephiphany’s 17 | Motion to Amend. (ECF Nos. 187, 194, 195.) 18 19 IT IS SO ORDERED. 20 21 June 23, 2020 22 . ig 23 Gieddioid OTIS D. WRIGHT, II 0s UNITED STATES DISTRICT JUDGE

26 27 28 ——_ A ? The Court finds Ms. White’s remaining statements equally without merit.