Raymond v. FCA US, LLC
- Proceeding
- district
- Area
- civil
- Panel
- Thomas J. Whelan (author)
Analysis
Defendant FCA US LLC moved to dismiss Count III of the Complaint under Rule 12(b)(6), and the Plaintiff failed to file an opposition. The Court granted the motion, deeming the failure to oppose as consent to dismissal, and dismissed Count III without prejudice.
| What the court decided | The model |
|---|---|
Grant Defendant's Motion to Dismiss Count III“In light of the foregoing, the Court GRANTS Defendant’s motion to dismiss, and DISMISSES WITHOUT PREJUDICE Plaintiff's third cause of action for violation of Business & Professions Code sections 17531 and 17535.” | agree with court The court relied on Civil Local Rule 7.1(f)(3)(c) and Ninth Circuit precedent (Ghazali v. Moran) to treat the plaintiff's failure to respond as consent to the motion. The order recites that the plaintiff had notice and ample time but failed to act. This procedural mechanism is a standard and valid basis for granting a motion in the Ninth Circuit when a party defaults on a response. |
The order itself: sound — The order correctly applies the local rule and binding circuit precedent to the procedural facts (failure to respond despite notice). It does not reach the merits of the 12(b)(6) claim, which is appropriate given the procedural default.
How this analysis was made · dispute it
unusual dispositionOpinion
1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA 13 14 JESSE RAYMOND, Case No.: 19-CV-01762 W (WVG)
15 Plaintiff, ORDER GRANTING DEFENDANT’S 16 v. UNOPPOSED MOTION TO DISMISS [DOC. 3] 17 FCA US LLC, et. al, 18 Defendants. 19 20 Pending before the Court is Defendant FCA US LLC’s motion to dismiss Count III 21 of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mot. [Doc. 3].) 22 Plaintiff has failed to oppose. The Court decides the matter on the papers submitted and 23 without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons that follow, the Court 24 GRANTS the motion [Doc. 3]. 25 Civil Local Rule 7.1(f)(3)(c) provides that “[i]f an opposing party fails to file 26 papers in the manner required by Local Rule 7.1.e.2, that failure may constitute a consent 27 to the granting of that motion or other ruling by the court.” The Ninth Circuit has held 28 that a district court may properly grant a motion to dismiss for failure to respond. See 1 || generally Ghazali v. Moran, 46 F.3d 52, 52 (9th Cir. 1995) (per curiam) (affirming 2 || dismissal for failure to file timely opposition papers where plaintiff had notice of the 3 ||motion and ample time to respond). 4 Here, based on the October 28, 2019 hearing date for Defendant’s motion, 5 || Plaintiff's opposition was due no later than October 11, 2019. However, Plaintiff did not 6 || file any opposition and has not requested additional time to do so. Moreover, there is no 7 || evidence before the Court that Defendant’s moving papers failed to reach the mailing 8 || address designated in the “Notice of Electronic Filing” (NEF) or that Plaintiff was not 9 || aware of the pending motion. Therefore, relying on Civil Local Rule 7.1(f)(3)(c), the 10 || Court deems Plaintiff's failure to oppose Defendant’s motion as consent to granting it. 11 In light of the foregoing, the Court GRANTS Defendant’s motion to dismiss, and 12 || DISMISSES WITHOUT PREJUDICE Plaintiff's third cause of action for violation of 13 || Business & Professions Code sections 17531 and 17535. [Doc. 3.] Because Plaintiff's 14 || other causes of action remain, the Clerk of the Court shall not close this case. 15 Plaintiff is admonished that a second failure to oppose a noticed motion to dismiss 16 |} will result in a dismissal without leave to amend on the ground of prejudice resulting 17 || from delay and needless expense. 18 19 IT IS SO ORDERED. 20 21 ||}Dated: November 5, 2019 \ 22 [pe Lon 23 Hn. 1 omas J. Whelan United States District Judge 25 26 27 28