Bracalente v. Foward Air Services, LLC
- Proceeding
- district
- Area
- civil
- Panel
- Thomas J. Whelan (author)
Analysis
The court considered Defendant Forward Air Services, LLC's motion to dismiss Counts 2 through 7 and Plaintiff Bracalente under Rule 12(b)(6). The court granted the motion, dismissing the state-law counts without leave to amend and dismissing Bracalente with prejudice, based on the plaintiffs' failure to file an opposition.
| What the court decided | The model |
|---|---|
Defendant's motion to dismiss Counts 2 through 7 is granted.“Counts 2 through 7 are DISMISSED WITHOUT LEAVE TO AMEND.” | agree with court The court did not apply the Rule 12(b)(6) standard of review to the merits of the preemption or standing arguments. Instead, it relied on Civil Local Rule 7.1(f)(3)(c) to deem the plaintiffs' failure to file an opposition as consent to the merits of the motion. While the Ninth Circuit has affirmed dismissals for failure to respond (Ghazali v. Moran), the order does not explicitly state that the local rule permits treating a failure to respond as a consent judgment on the merits, nor does it analyze whether the local rule's 'may constitute a consent' language was properly applied to grant the motion on the merits rather than for failure to prosecute. However, given the citation to Ghazali and the local rule, the procedural mechanism is defensible, though the reasoning is thin. |
Plaintiff Anthony Robert Bracalente is dismissed with prejudice.“Plaintiff Anthony Robert Bracalente is DISMISSED WITH PREJUDICE.” | agree with court Similar to the dismissal of the counts, the court dismissed the individual plaintiff based on the deemed consent to the merits of the standing argument. The order does not provide a substantive analysis of standing but relies on the procedural default. This is consistent with the treatment of the other counts. |
The order itself: sound with gaps — The order is procedurally sound in that it cites the correct local rule and a Ninth Circuit case supporting dismissal for failure to respond. However, it is 'sound with gaps' because it does not explicitly articulate the legal standard for converting a failure to respond into a consent to the merits under the specific local rule, nor does it address whether the local rule's permissive language ('may constitute') was properly exercised. It skips the substantive analysis of preemption and standing entirely, relying solely on the procedural default.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RYDER GEAR, LLC, et al., Case No.: 21-CV-1551 W (AGS)
12 Plaintiffs, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS [DOC. 5] WITHOUT LEAVE TO AMEND 14 FORWARD AIR SERVICES, LLC, 15 Defendant. 16 17 18 Pending before the Court is Defendant Forward Air Services, LLC’s motion to 19 dismiss Counts 2 through 7 in the Complaint and one of the named Plaintiffs under 20 Federal Rule of Civil Procedure 12(b)(6). Count 1 in the Complaint asserts a violation of 21 the Carmack Amendment under 49 U.S.C. § 14706. (See Compl. [Doc. 1].) Counts 2 22 through 7 assert state-based violations. (See id.) Plaintiffs are Ryder Gear LLC 23 (“Ryder”) and Anthony Robert Bracalente, individually and as Chief Executive Officer of 24 Ryder. (Id. ¶¶ 1–3.) 25 Defendant argues the six state-based counts are preempted under the Carmack 26 Amendment. (MTD P&A [Doc. 5-1] 4:1–7:17.) Defendant also argues Plaintiff 27 Bracalente lacks standing because the cargo at issue belonged to Ryder, not him. (Id. 28 7:18–9:15.) 1 Civil Local Rule 7.1(f.3.c) provides that “[i]f an opposing party fails to file papers 2 the manner required by Local Rule 7.1(e)(2), that failure may constitute a consent to 3 || the granting of that motion or other ruling by the court.” The Ninth Circuit has held that 4 district court may properly grant a motion to dismiss for failure to respond. See 5 || Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming dismissal for 6 || failure to file timely opposition papers where plaintiff had notice of the motion and ample 7 || time to respond). 8 Here, based on the hearing date, Plaintiffs’ opposition was due on or before 9 || October 25, 2021. Plaintiffs, however, did not file an opposition and have not requested 10 || additional time to do so. Moreover, there is no evidence before the Court that 11 || Defendant’s moving papers failed to reach the mailing address designated in Defendant’s 12 || Proof of Service or that Plaintiffs were not aware of the pending motion. Relying on 13 || Civil Local Rule 7.1(£.3.c), the Court deems Plaintiffs’ failure to oppose Defendant’s 14 || motion as consent to the merits. 15 Based on the foregoing, the Court GRANTS Defendant’s motion to dismiss [Doc. 16 ||5] and ORDERS as follows: 17 e Counts 2 through 7 are DISMISSED WITHOUT LEAVE TO AMEND. 18 e Plaintiff Anthony Robert Bracalente is DISMISSED WITH PREJUDICE. 19 IT IS SO ORDERED. 20 ||Dated: March 29, 2022 \ 22 Hn. 7 omas J. Whelan 73 United States District Judge 24 25 26 27 28