Ashley Kerr v. U.S. Bank

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION ASHLEY KERR, CV 25-90-BLG-SPW Plaintiff, FINDINGS AND RECOMMENDATIONS OF vs. UNITED STATES MAGISTRATE JUDGE U.S. BANK,

Defendant.

Plaintiff Ashley Kerr (“Plaintiff”) brought this action against U.S. Bank (“Defendant”), seeking to preclude foreclosure of her property. (Doc. 3.)

Presently before the Court is Defendant’s Motion to Dismiss. (Doc. 10.)

The Court finds the Defendant’s motion should be GRANTED.

I. BACKGROUND Plaintiff filed this action on April 24, 2025 in the in the Montana Thirteenth Judicial District Court, Yellowstone County. (Doc. 3.) On July 11, 2025, Defendant timely removed the action, invoking the Court’s diversity jurisdiction under 28 U.S.C. §§ 1332(a) and 1441. (Doc. 1.)

On August 11, 2025, Defendant filed a Motion to Dismiss. (Doc. 10.) That same day, Plaintiff’s counsel filed a Motion to Withdraw. (Doc. 8.) The Court denied Plaintiff’s counsel’s motion, but allowed counsel to refile the motion in compliance with Local Rule 83.3(b). (Doc. 9).

Plaintiff’s counsel filed an Amended Motion to Withdraw on September 8, 2025, which the Court granted. (Docs. 14, 15.) In light of counsel’s withdrawal, the Court extended the deadline for Plaintiff to respond to Defendant’s Motion to Dismiss. (Doc. 15.) The Court also advised Plaintiff that failure to respond to the Motion to Dismiss may be deemed a failure to prosecute, and would be grounds for the action to be dismissed. (Id.) Plaintiff did not respond to Defendant’s Motion to Dismiss.

Therefore, on December 12, 2025, the Court issued an Order to Show Cause directing Plaintiff to show cause, if any, why this case should not be dismissed for failure to respond to Defendant’s Motion to Dismiss. (Doc. 17.) Plaintiff’s response to the Order to Show case was due on January 9, 2026. (Id.) To date, Plaintiff has not responded to the Order to Show Cause.

II. DISCUSSION Plaintiff’s response to the Motion to Dismiss was due by October 10, 2025. (Doc. 15.) Plaintiff never filed a response brief or sought leave from the Court to for an extension of time. Plaintiff’s failure to respond is deemed an admission that Defendants’ motion is well-taken. L.R. 7.1(d)(1)(B)(ii).

Further, Plaintiff’s failure to respond to the Motion to Dismiss constitutes a failure to prosecute her case, and is grounds for which this action may be dismissed. See, e.g., Calip v. Soc. Sec. Admin., 2014 WL 3421147, at *2 (N.D. Cal. July 14, 2014); Smith v. United States, 2007 WL 505067, at *1 (D. Ariz. Feb. 14, 2007). In other words, even if a plaintiff’s failure to oppose a Rule 12 motion is not, by itself, grounds to dismiss a complaint, see Singh v. Collectibles Mgmt. Res., 2016 WL 5846997, at *2 n.1 (E.D. Cal. Oct. 5, 2016) (collecting cases), “[i]t is within the inherent power of the court to sua sponte dismiss a case for lack of prosecution,” Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)).

Plaintiff has also not responded to the Court’s Order to Show Cause, or taken any other action to indicate she wishes to pursue in this litigation.

Plaintiff has unequivocally failed to prosecute this action.

Therefore, the Court recommends that Defendant’s Motion to Dismiss be granted, and Plaintiffs’ Complaint be dismissed without prejudice.

III. CONCLUSION As set forth above, IT IS RECOMMENDED that Defendant’s Motion to Dismiss (Doc. 10) be GRANTED.

NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve a copy of the Findings and Recommendations of United States Magistrate Judge upon the parties. The parties are advised that pursuant to 28 U.S.C. § 636, any objections to the findings and recommendations must be filed with the Clerk of Court and copies served on opposing counsel within fourteen (14) days after service hereof, or objection is waived.

The Clerk of Court shall mail notice of this Order to: Ashley Kerr 4770 Sanctuary Trail Billings, MT 59101 DATED this 20th day of January, 2026.

TIMOTHY J. CAVAN United States Magistrate Judge