Word v. City of San Diego
- Proceeding
- district
- Area
- civil
- Panel
- Thomas J. Whelan (author)
Analysis
Defendants moved to dismiss the Second Amended Complaint under Rule 12(b)(6), and Plaintiffs failed to file a timely opposition after unilaterally filing a Third Amended Complaint which the Court struck. The Court granted the motion to dismiss, deeming the failure to oppose as consent to the merits, and denied the subsequent ex parte application for leave to amend as moot.
| What the court decided | The model |
|---|---|
Defendants' Motion to Dismiss [Doc. 16] is GRANTED.“Based on the foregoing, the Court deems Plaintiffs’ failure to oppose Defendants’ motion as consent to the merits and accordingly GRANTS Defendants’ motion [Doc. 16]” | 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 failure to respond as consent to the motion. While the order states the claims are dismissed 'without leave to amend' for some and 'with leave to amend' for others, the primary basis for granting the motion was the procedural default (failure to oppose) rather than a substantive 12(b)(6) analysis of the pleadings. This is a defensible procedural ruling based on the local rule and cited case law. |
Plaintiffs' first, second, fifth, and sixth claims for relief are DISMISSED WITHOUT LEAVE TO AMEND.“Plainitffs’ first, second, fifth and sixth claims for relief are DISMISSED WITHOUT LEAVE TO AMEND” | agree with court The court granted dismissal without leave to amend for these specific claims based on the Plaintiffs' statement in their ex parte application that they agreed to 'abandon' these claims. This aligns with the request by Defendants and the Plaintiffs' own admission of abandonment. |
Plaintiffs' fourth and seventh claims for relief are DISMISSED WITH LEAVE TO AMEND.“Plaintiffs’ fourth and seventh are DISMISSED WITH LEAVE TO AMEND.” | agree with court The court allowed amendment for the remaining claims, consistent with the general rule that dismissal for failure to state a claim (or procedural default) often comes with leave to amend unless futile. The court set a deadline for the Third Amended Complaint. |
Plaintiffs' Ex Parte Application [Doc. 19] is DENIED AS MOOT.“In light of this order, Plaintiffs’ ex parte application [Doc. 19] is DENIED AS MOOT.” | agree with court Since the court granted the motion to dismiss and ordered the filing of a Third Amended Complaint by a specific date, the prior application for leave to file that same document became unnecessary and thus moot. |
The order itself: sound — The order is procedurally sound. It correctly identifies the local rule and Ninth Circuit precedent supporting the treatment of a failure to respond as consent to the motion. It also correctly distinguishes between claims the plaintiff admitted to abandoning (dismissed without leave) and those remaining (dismissed with leave to amend). The denial of the ex parte application as moot is a logical consequence of the court's order to file the TAC by a set date.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CLAYTON WORD, et al., Case No.: 20-cv-2235 W (MDD)
12 Plaintiffs, ORDER (1) GRANTING 13 v. DEFENDANTS’ UNOPPOSED MOTION TO DISMISS [DOC. 16] 14 CITY OF SAN DIEGO, et al., AND (2) DENYING AS MOOT EX 15 Defendants. PARTE APPLICATION [DOC. 19] 16 17 18 On January 29, 2021, Defendants filed the pending motion to dismiss under 19 Federal Rule of Civil Procedure 12(b)(6). Defendants argue the Second Amended 20 Complaint fails to state a claim for relief as to the first, second, third, fourth, fifth, sixth 21 and seventh claims for relief. (Notice of Motion [Doc. 16] 1:27–2:2.) Alternatively, 22 Defendants move for a more definite statement as to the first, second, fourth, fifth, sixth 23 and seventh claims. (Id. 2:2–4.) Defendants’ motion was set for hearing on March 8, 24 2021. Plaintiffs’ opposition was, therefore, due on or before February 22, 2021. 25 On February 22, 2021, Plaintiffs attempted to unilaterally file a Third Amended 26 Complaint (“TAC”). On February 24, 2021, this Court ordered the TAC struck under 27 Federal Rule of Civil Procedrue 15(a), which allows a party to amend its pleading once as 28 a matter of course and requires a court order or the opposing party’s consent for any 1 further amendments. (Discrepancy Order (Doc. 18].) 2 On February 25, 2021, Plaintiffs filed an ex parte application for leave to file the 3 TAC. (Ex Parte App. [Doc. 19].) In the application, Plaintiffs agree to “abandon” the 4 || first (Unreasonable Seizure), second (Excessive Force), fifth (False Arrest — California 5 and sixth (Batter — California law) claims for relief. (Ud. 1:27—2:3.) 6 On March 1, 2021, Defendants filed the notice of non-oppsotion to their motion to 7 dismiss. (Notice of Non-Opp’n [Doc. 20].) Based on Plaintiffs’ failure to oppose and 8 || statement in the ex party application, Defendants request the dismissal of the first, 9 || second, fifth and sixth claims be without leave to amend. 10 Civil Local Rule 7.1.f.3.c provides that “[i]f an opposing party fails to file papers 11 |/in the manner required by Local Rule 7.1.¢.2, that failure may constitute a consent to the 12 || granting of that motion or other ruling by the court.” The Ninth Circuit has held that a 13 district court may properly grant a motion to dismiss for failure to respond. See Ghazali 14 || v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to 15 || file timely opposition where plaintiff had notice of the motion and time to respond). 16 Based on the foregoing, the Court deems Plaintiffs’ failure to oppose Defendants’ 17 motion as consent to the merits and accordingly GRANTS Defendants’ motion [Doc. 16] 18 follows: Plainitffs’ first, second, fifth and sixth claims for relief are DISMISSED 19 || WITHOUT LEAVE TO AMEND; Plaintiffs’ fourth and seventh are DISMISSED 20 || WITH LEAVE TO AMEND. The Third Amended Complaint must be filed on or 21 || before March 16, 2021. In light of this order, Plaintiffs’ ex parte application [Doc. 19] is 22 || DENIED AS MOOT. 23 IT IS SO ORDERED. 24 | Dated: March 2, 2021 25 Hh) 26 Hn. 1 omas J. Whelan 07 United States District Judge 28