Theroux Jr. v. Marshalls of MA, Inc
- Proceeding
- district
- Area
- civil
- Panel
- Myron James Lorenz (author)
Analysis
Defendant Marshalls of MA, Inc. moved to dismiss the plaintiff's ADA and Unruh Act claims for lack of standing under Rule 12(b)(1). The court granted the motion as unopposed and dismissed all claims against Marshalls without prejudice.
| What the court decided | The model |
|---|---|
Motion to dismiss for lack of standing granted; claims dismissed without prejudice“Marshalls’ motion is therefore granted as unopposed. ... All claims asserted against Defendant Marshalls of MA, Inc. are dismissed without prejudice pursuant to Federal Rule of Civil Procedure 12(b)(1).” | agree with court The court applied the local rule and Ninth Circuit precedent allowing for the granting of unopposed motions. Because the plaintiff failed to file an opposition to a motion challenging the court's subject matter jurisdiction (standing), the dismissal is procedurally correct. Dismissing for lack of standing without prejudice is the standard remedy, as it is a curable defect. |
The order itself: sound — The order is procedurally sound. It correctly identifies the motion as unopposed, cites the appropriate local rule and circuit authority for granting such motions, and applies the correct remedy (dismissal without prejudice) for a jurisdictional defect.
How this analysis was made · dispute it
unusual dispositionOpinion
1 2 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VERN ROBERT THEROUX JR., Case No. 3:21-cv-00945-L-BLM 12 Plaintiff, ORDER GRANTING MOTION TO DISMISS 13 v. [ECF NO. 20] 14 MARSHALLS OF MA, INC., et al., 15 Defendants. 16 17 19 Pending before the Court in this action alleging disability discrimination in 20 violation of the Americans with Disabilities Act , 42 U.S.C. § 12101 et seq., and Unruh 21 Civil Rights Act, Cal. Civ. Code § 51 et seq., is a motion to dismiss filed by Defendant 22 Marshalls of MA, Inc. (“Marshalls”). Marshalls argues all claims asserted against it 23 should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of 24 standing under Article III of the United States Constitution. Plaintiff, who is represented 25 by counsel, was to file an opposition, if any, no later than November 1, 2021. No 26 opposition has been filed to date. Marshalls’ motion is therefore granted as unopposed. 27 See Civ. Loc. Rule 7.1(f)(3)(c); Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995). All 28 / / / / / ! || claims asserted against Defendant Marshalls of MA, Inc. are dismissed without prejudice 2 pursuant to Federal Rule of Civil Procedure 12(b)(1). 3 IT IS SO ORDERED. 4 5 ||Dated: April 4, 2022 (ae flap? 7 H . James Lorenz, 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28