Opinion
Case No. CV-S-01-1230-RLH (LRL)
June 12, 2002
ORDER
(Motion to Dismiss, or in the Alternative, for Summary Judgment — #4)
Before the Court is Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment (#4), filed February 7, 2002. No opposition was filed with the court.
BACKGROUND
On October 12, 2000, the Internal Revenue Service ("IRS") sent Plaintiffs a notice of intent to levy to collect outstanding civil penalties assessed against them for tax years 1997 and 1998. In addition to the notice, the IRS informed Plaintiffs of their right to request a "Due Process Appeals Hearing" pursuant to Title 26 U.S.C. § 6330 (a). On June 26, 2001, a Collection Due Process Hearing was held. On September 21, 2001, the IRS sent Plaintiffs a Notice of Determination Concerning Collection Action pursuant to Section 6330(a). The Notice of Determination informed Plaintiffs of the issues addressed at the Collection Due Process Hearing and notified Plaintiffs of their right to judicial review of the determination.
On October 19, 2001, Plaintiffs filed a complaint for damages and appeal of the collection due process determination. On December 26, 2001, this Court granted the Defendant an extension of 45 days to respond to the complaint. On February 7, 2002, Defendant filed for a motion to dismiss Plaintiffs' income tax-related claims under Fed.R.Civ.P. 12 (b)(6), or in the alternate for summary judgment pursuant to Fed.R.Civ.P. 56.
DISCUSSION
Pursuant to Local Rule 7-2(d), "[t]he failure of an opposing party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion." When an opposing party receives notice pursuant to Fed.R.Civ.Proc. 5(b) and is given sufficient time to respond to a motion to dismiss, a district judge does not abuse his discretion in granting the motion based on failure to comply with a local rule. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). But cf. Evans v. Indep. Order of Foresters, 141 F.3d 931, 932 (9th Cir. 1998) (failure to comply with local rule may not be employed as a sanction against a party on summary judgment motion). Before dismissing a case for failing to follow local rules, the district court must weigh five 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 on their merits and (5) the availability of less drastic sanctions." Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
Here the Plaintiff was given the appropriate notice of Defendant IRS's motion to dismiss or, in the alternative for summary judgment when it was filed February 7, 2002. On February 8, 2002, the Court issued an order that clearly informed Plaintiffs about the consequences of a failure to comply with LR 7-2. The court has weighed the Henderson factors and finds that the Court's interest in resolving this case and managing its docket outweighs any risk of prejudice to Plaintiffs. Defendant's motion to dismiss will therefore be granted.
CONCLUSION
Accordingly, and for good cause appearing,
IT IS HEREBY ORDERED that Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (#4) is GRANTED.