Escamilla Avina v. Patenaude & Felix, APC
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
Defendant Specialized Attorney Services, Inc. moved to dismiss Plaintiff's Second Amended Complaint, and Plaintiff failed to file an opposition by the deadline. The court granted the motion and dismissed the action against the defendant without prejudice.
| What the court decided | The model |
|---|---|
Granting Defendant Specialized Attorney Services, Inc.'s Motion to Dismiss Plaintiff's Second Amended Complaint“Accordingly, the Court GRANTS SPS’s Motion to Dismiss (ECF No. 44) and DISMISSES WITHOUT PREJUDICE Plaintiff's action as to SPS.” | agree with court The court correctly applied Civil Local Rule 7.1(f)(3)(c), which allows a failure to respond to a motion to constitute consent to its granting. The court also cited Ghazali v. Moran to support the proposition that pro se litigants are bound by procedural rules and that dismissal for failure to respond is appropriate when notice was given. The court noted its own review of the record supported dismissal, providing an independent basis for the ruling. |
The order itself: sound — The order is procedurally sound. It correctly identifies the local rule governing oppositions, cites controlling Ninth Circuit precedent regarding the dismissal of pro se cases for failure to respond, and notes that the court's independent review of the record supported the dismissal. The dismissal is without prejudice, which is appropriate given the procedural nature of the default.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 JORGE ESCAMILLA AVINA, on Case No. 20-cv-00166-BAS-MDD 11 behalf of himself and all others similarly situated, ORDER GRANTING DEFENDANT 12 SPECIALIZED ATTORNEY SERVICES Plaintiff, INC.’S UNOPPOSED MOTION TO 13 DISMISS PLAINTIFF’S SECOND v. AMENDED COMPLAINT 14 PATENAUDE & FELIX, APC; CREDIT (ECF No. 44) CORP. SOLUTIONS, INC.; THOMAS 15 FLYNN, 16 Defendants. 17 18 Defendant Specialized Attorney Services, Inc. (“SPS”) filed a Motion to Dismiss 19 Plaintiff’s Second Amended Complaint (“Motion”) on June 11, 2021, noticing a hearing 20 date of August 9, 2021. (ECF No. 44.) Plaintiff’s deadline to file an opposition was July 21 26, 2021. See Civ. LR 7.1(e). No opposition was filed on the docket and SPS informed 22 the Court that it never received service of Plaintiff’s opposition. (ECF No. 47.) 23 Civil Local Rule 7.1(e)(2) provides that a party opposing a motion must file either 24 an opposition or a statement of non-opposition no later than fourteen calendar days prior 25 to the noticed hearing date. If a party fails to comply with this rule, “that failure may 26 constitute a consent to the granting of a motion or other request for ruling by the court.” 27 Civ.LR 7.1(f)(3)(c). A district court may properly grant a motion to dismiss for failure to 28 respond pursuant to the court’s local rules. See Ghazali v. Moran, 46 F.3d 52, 52 (9th Cir. 1 || 1995) (per curiam) (affirming dismissal for failure to file timely opposition papers where 2 || plaintiff had notice of the motion and ample time to respond). Furthermore, even though 3 || federal courts will construe pleadings liberally in their favor, “pro se litigants are bound by 4 || the rules of procedure.” Ghazali, 46 F.3d at 54 (citing King v. Atiyeh, 814 F.2d 565, 567 5 || (9th Cir. 1987), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 (9th 6 || Cir. 2012)). 7 Because Plaintiff's deadline to respond has passed and there is no indication that he 8 || did not receive notice of SPS’s Motion, the Court deems Plaintiff's failure to oppose as 9 || consent to granting the motion. See CivLR 7.1(f)(3)(c). The Court’s own review of the 10 ||record also supports dismissing Plaintiff's Complaint. Accordingly, the Court GRANTS 11 ||}SPS’s Motion to Dismiss (ECF No. 44) and DISMISSES WITHOUT PREJUDICE 12 || Plaintiff's action as to SPS. 13 IT IS SO ORDERED. 14 A. Dd J 15 || DATED: August 30, 2021 fil A Hishaa 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28