Preciado v. Mayorkas
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
Defendants moved to dismiss the plaintiff's naturalization denial complaint under Rule 12(b)(6), and the plaintiff failed to file an opposition or statement of non-opposition by the deadline. The court granted the unopposed motion and dismissed the claims without prejudice.
| What the court decided | The model |
|---|---|
Grant of Defendants' unopposed motion to dismiss“Accordingly, the Court GRANTS Defendants’ unopposed motion to dismiss, and DISMISSES Plaintiffs claims as to all Defendants without prejudice.” | agree with court The court correctly applied the local rule which permits treating a failure to respond as consent to the motion. The court also correctly noted the public policy favoring merits disposition but determined the case could not proceed without a defense. The dismissal without prejudice is the standard remedy for a failure to prosecute or respond to a motion to dismiss, allowing the plaintiff to refile if they wish to defend the claims. |
The order itself: sound — The order is procedurally sound. It identifies the local rule basis for treating the lack of opposition as consent, cites the relevant Ninth Circuit authority permitting such discretion, and balances the policy favoring merits resolution against the practical impossibility of moving forward without a defense. The dismissal without prejudice is appropriate.
How this analysis was made · dispute it
unusual dispositionOpinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ADOLFO GUTIERREZ PRECIADO, Case No. 21-cv-1666-MMA (KSC)
12 Plaintiff, ORDER GRANTING UNOPPOSED 13 v. MOTION TO DISMISS 14 ALEJANDRO MAYORKAS, Secretary, [Doc. No. 12] Department of Homeland Security, in his 15 official capacity, et al., 16 Defendants. 17 19 20 On September 22, 2021, Plaintiff Adolfo Gutierrez Preciado (“Plaintiff”) initiated 21 this action challenging the denial of his naturalization application by U.S. Citizenship and 22 Immigration Services. See Doc. No. 1. On July 18, 2022, Defendants filed a motion to 23 dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See Doc. 24 No. 12. The Court set the motion for hearing on August 29, 2022, and accordingly, 25 Plaintiff’s deadline to file a response in opposition was August 15, 2022. See CivLR 26 7.1e.2 (stating that “each party opposing a motion . . . must file that opposition or 27 statement of non-opposition . . . not later than fourteen (14) calendar days prior to the 28 noticed hearing”). Plaintiff has not yet filed an opposition brief or a statement of non- 1 || opposition in response to Defendants’ motion to dismiss, and the time for doing so has 2 since expired. See Docket. 3 The Ninth Circuit has held that a district court may grant an unopposed motion to 4 dismiss where a local rule permits, but does not require, it to do so. See generally 5 || Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Here, Civil Local Rule 7.1.f.3.c 6 || provides, “[1]f an opposing party fails to file the papers in the manner required by Civil 7 ||Local Rule 7.1.¢.2, that failure may constitute a consent to the granting of a motion or 8 || other request for ruling by the court.” As such, the Court has the option of granting 9 || Defendants’ motion on the basis of Plaintiff’s failure to oppose.’ Generally, public 10 || policy favors disposition of cases on their merits. See Hernandez v. City of El Monte, 11 |} 138 F.3d 393, 399 (9th Cir. 1998). However, a case cannot move forward toward 12 resolution on the merits when the plaintiff fails to defend his or her complaint against a 13 12 motion. Accordingly, the Court GRANTS Defendants’ unopposed motion to 14 || dismiss, and DISMISSES Plaintiffs claims as to all Defendants without prejudice. The 15 Court DIRECTS the Clerk of Court to close the case and to terminate all pending 16 motions, deadlines, and hearings. 17 IT ISSO ORDERED. 18 ||Dated: October 4, 2022 20 HON. MICHAEL M. ANELLO 1 United States District Judge 22 23 24 25 26 || 27 Moreover, Plaintiff's failure to comply with the provisions of Civil Local Rule 7.1.¢.2 constitutes a 28 failure to comply with the provisions of this Court’s Local Rules, which serves as an additional basis for dismissal under Civil Local Rule 41.1.b.