Ham v. Navy Federal Credit Union

• Court: District Court, D. Arizona
• Decided: July 29, 2025
• Docket: 2:25-cv-02107
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Michelle Ham, No. CV-25-02107-PHX-SHD

10 Plaintiff, ORDER

11 v.

12 Navy Federal Credit Union, et al.,

13 Defendants. 14 15 Plaintiff Michelle Ham brought this action against Defendant Navy Federal Credit 16 Union (“Navy Federal”) alleging violations of the Electronic Funds Transfer Act 17 (“EFTA”), 15 U.S.C. § 1693 et seq., and state-law claims for breach of contract, unjust 18 enrichment, conversion, and negligence. (Doc. 1-4.)1 Before the Court is Navy Federal’s 19 Motion to Dismiss, (Doc. 8), to which Ham did not respond. The Court will grant Navy 20 Federal’s Motion to Dismiss and terminate this action. 21 I. BACKGROUND 22 Ham’s claims stem from an erroneous transfer of funds from her account at Navy 23 Federal to the account of her ex-husband on or about March 9, 2023. (Doc. 1-4 at 3.) Ham 24 alleges she notified Navy Federal of the error and requested that the funds be returned. 25 (Id.) Ham asserts that Navy Federal’s failure to reverse the erroneous transfer is, among 26 other things, a breach of contract and a violation of the EFTA and relevant regulations. 27 (See id. at 4.)

28 1 Ham filed this action in Yuma County Superior Court, and Navy Federal removed the action to federal court on June 13, 2025. (Doc. 1.) 1 On June 20, 2025, Navy Federal moved to dismiss Ham’s Complaint for failure to 2 state a claim under Rule 12(b)(6). (Doc. 8.) Specifically, Navy Federal argues (1) Ham’s 3 claims for negligence, conversion, and EFTA violations are barred by the applicable statute 4 of limitations, (2) the unjust enrichment claim is prohibited in light of Ham’s contractual 5 claim, and (3) the breach of contract claim fails because the alleged breach is not a 6 contractual duty that Navy Federal owes to Ham. (Id. at 6.) Ham did not respond to Navy 7 Federal’s Motion or request an extension of time, and the time for her to respond has now 8 expired. See LRCiv 7.2(c). 9 II. DISCUSSION 10 Under Local Rule of Civil Procedure 7.2(i), a party’s failure to file a response to a 11 motion may be deemed consent to the granting of the motion and the Court may dispose 12 of the motion summarily. See Wystrach v. Ciachurski, 267 F. App’x 606, 607 (9th Cir. 13 2008) (holding the court did “not abuse its discretion in applying its local rule summarily 14 to grant defendants’ motion to dismiss because plaintiffs failed timely to respond”); Doe v. 15 Dickenson, 2008 WL 4933964, at *5 (D. Ariz. 2008) (holding the court was “entitled to 16 treat Plaintiffs’ failure to respond as waiver of the issue and consent to Defendants’ 17 argument”); Currie v. Maricopa Cnty. Cmty. Coll. Dist., 2008 WL 2512841, at *2 n.1 (D. 18 Ariz. 2008) (“Plaintiff does not respond to this argument, and her failure to do so serves as 19 an independent basis upon which to grant [the] motion.”). 20 Before dismissing an action pursuant to a local rule like LRCiv 7.2(i), the Court 21 must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 22 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 23 favoring disposition of cases of their merits; and (5) the availability of less drastic 24 sanctions.” See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); see also 25 Wystrach, 267 F. App’x at 607–08 (requiring district courts to weigh the Ghazali factors 26 before dismissing for failing to follow local rules). 27 Applying the Ghazali factors, the circumstances here weigh in favor of dismissal, 28 particularly the “public’s interest in expeditious resolution of litigation” and the Court’s 1 || need to manage its docket, given Ham’s failure to respond to the Motion or move for more 2|| time, despite being represented by counsel. See Viveros v. Suzuki Motor of Am. Inc., 2019 3|| WL 4673340, at *1—2 (D. Ariz. 2019) (summarily granting motion to dismiss based on 4|| plaintiffs failure to respond because (1) the “plaintiff [was] represented by counsel,” was || “given ample time to respond to the Motion to Dismiss,” and “did not respond or provide || any reasons for his failure to do so”; (2) the plaintiff's unreasonable delay created a 7\| “presumption of prejudice”; and (3) the plaintiff was “aware of the response deadline and 8 || had ample time to contact the court’’). 9 Accordingly, the Court will construe Ham’s failure to respond as her consent to the granting of the Motion. The Motion to Dismiss will be granted, and the action will be 11 |} terminated. 12 Accordingly, 13 IT IS ORDERED granting Navy Federal’s Motion to Dismiss, (Doc. 8), and dismissing this matter with prejudice. 15 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment and 16 || terminate this action. 17 Dated this 29th day of July, 2025. / 18 2 / 19 20 H le Sharad H. Desai 21 United States District Judge 22 23 24 25 26 27 28

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