Ortiz v. Walmart, Inc.
- Proceeding
- district
- Area
- civil
- Panel
- Gonzalo P. Curiel (author)
Analysis
Defendant Julio Galvan moved to dismiss the first amended complaint against him for failure to timely serve, and Plaintiff Rebecca Ortiz failed to file an opposition. The court granted the motion to dismiss as unopposed, vacating the scheduled hearing.
| What the court decided | The model |
|---|---|
Granting Defendant Julio Galvan's motion to dismiss the first amended complaint against him“Based on the above, the Court GRANTS Defendant Galvan’s motion to dismiss the FAC against him.” | agree with court The court relied on the local rule treating failure to oppose as consent to the granting of the motion. While the court applied the Ghazali factors, it did not address the underlying substantive claim of failure to timely serve, nor did it consider whether the plaintiff was pro se or represented, which is often relevant in the Ghazali analysis. However, the result is defensible under the local rule and the cited precedent regarding unopposed motions. |
Vacating the hearing set for November 19, 2021“The hearing set on November 19, 2021 shall be vacated.” | agree with court This is a procedural consequence of granting the motion. |
The order itself: sound with gaps — The order correctly identifies the local rule and the relevant Ninth Circuit precedent (Ghazali) for handling unopposed motions. It applies the required factors. However, it is somewhat brief in its application of the factors, specifically noting that the 'majority' weigh in favor of dismissal without explicitly analyzing the 'availability of less drastic sanctions' or the 'public policy favoring disposition on the merits' in detail, though it implies they were considered. The reliance on the local rule's consent provision is the primary driver, which is legally sound.
Opinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 REBECCA ORTIZ, Case No.: 20-cv-02219-GPC(AGS)
11 Plaintiff, ORDER GRANTING DEFENDANT 12 v. JULIO GALVAN’S MOTION TO DISMISS AS UNOPPOSED 13 WALMART, INC.; DOES 1 THROUGH 25, INCLUSIVE 14 [Dkt. No. 34.] Defendant. 15 16 Before the Court is Defendant Julio Galvan’s motion to dismiss first amended 17 complaint against him for failing to timely serve. (Dkt. No. 34.) No opposition was 18 filed. Based on the reasoning below, the Court GRANTS Defendant’s motion as 19 unopposed. 20 BACKGROUND 21 On May 28, 2020, Plaintiff Rebecca Ortiz (“Plaintiff”) filed a complaint in San 22 Diego Superior Court against Defendant Walmart, Inc. alleging negligence and premises 23 liability for injuries she allegedly sustained while shopping at Defendant’s store located 24 at 2540 Rockwood Avenue in Calexico, California. (Dkt. No. 1-2, Compl.) On 25 November 13, 2020, Defendant removed this action to this Court. (Dkt. No. 1.) On April 26 26, 2021, the Court granted Plaintiff’s motion for leave to file an amended complaint. 27 1 (Dkt. No. 17.) Plaintiff filed a first amended complaint (“FAC”) against Defendant 2 Walmart, Inc., Cesar Rico (“Rico”), and Julio Galvan (“Galvan”). (Dkt. No. 18.) 3 Defendants Walmart and Rico filed their answers. (Dkt. Nos. 25, 33.) Defendant Gavan 4 filed a motion to dismiss the FAC against him because he was not timely served. (Dkt. 5 No. 34.) No opposition was filed. 6 DISCUSSION 7 Civil Local Rule 7.1.e.2. requires a “party opposing a motion to file an opposition 8 or statement of non-opposition within fourteen calendar days of the noticed hearing. 9 Failure to comply with these rules “may constitute a consent to the granting of a motion.” 10 Civ. Local R. 7.1.f.3.c. District courts have broad discretion to enact and apply local 11 rules, including dismissal of a case for failure to comply with the local rules. Ghazali v. 12 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming grant of an unopposed motion to 13 dismiss under local rule by deeming a pro se litigant’s failure to oppose as consent to 14 granting the motion); United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). Before 15 dismissing an action for failure to comply with local rules, the district court “weigh[s] 16 several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the 17 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 18 public policy favoring disposition of cases of their merits; and (5) the availability of less 19 drastic sanctions.’” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 20 1421, 1423 (9th Cir.1986)). 21 Here, the Court concludes that “the public’s interest in expeditious resolution of 22 litigation,” “the court’s need to manage its docket,” and “the risk of prejudice to the 23 defendants” weigh in favor of granting the motion to dismiss based on Plaintiff’s failure 24 to file an opposition. See Ghazali, 46 F.3d at 53. Because the majority of these factors 25 weigh in favor of dismissal, the Court finds good cause to grant Defendant Galvan’s 26 unopposed motion to dismiss the FAC against him. See Civ. Local R. 7.1.f.3.c; see also 27 Ghazali, 46 F.3d at 53. 1 Conclusion 2 Based on the above, the Court GRANTS Defendant Galvan’s motion to dismiss the 3 || FAC against him. The hearing set on November 19, 2021 shall be vacated. 4 IT IS SO ORDERED. 5 Dated: November 16, 2021 Carseto C4 6 Hon. Gonzalo P. Curiel 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28