Ridgeline Tactical LLC v. Bureau of ATF
- Proceeding
- district
- Area
- civil
- Panel
- Dana M. Sabraw (author)
Analysis
The court considered Defendant ATF's unopposed motion to dismiss and an Order to Show Cause regarding Plaintiff's pro se representation. The court granted the motion and dismissed the entire case without prejudice because Plaintiff is an LLC and cannot proceed pro se.
| What the court decided | The model |
|---|---|
Grant Defendant ATF's Motion to Dismiss“Finding that the Ghazali factors weigh in favor of granting the Defendant ATF’s unopposed Motion, the Court grants Defendant ATF’s Motion pursuant to Local Rule 7.1(f)(3)(c).” | agree with court The court applied the Ghazali factors to determine whether to dismiss an unopposed motion. It found that the factors weighing in favor of dismissal (docket management, prejudice, lack of less drastic sanctions) outweighed the factor favoring merits disposition, particularly given the procedural bar against pro se corporate representation. This follows the logic of the cited authorities. |
Dismiss the entire case without prejudice“Because Plaintiff cannot proceed pro se on behalf of an LLC, this entire case is DISMISSED without prejudice.” | agree with court The court correctly identified that Plaintiff is an LLC and that the signatory is an individual proceeding pro se. Under Ninth Circuit precedent, corporations and LLCs must appear through licensed counsel. Since the plaintiff indicated it would not retain counsel, dismissal without prejudice is the appropriate remedy to allow for re-filing with proper representation. |
The order itself: sound — The order correctly applies the Ghazali factors to the unopposed motion and correctly applies the well-settled rule that LLCs cannot proceed pro se. The reasoning is complete, citing the necessary local rules and binding circuit precedent. The dismissal without prejudice is the standard remedy when a party fails to appear through counsel but has not yet had a decision on the merits.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RIDGELINE TACTICAL LLC, Case No.: 23-cv-00060-DMS-JLB 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS 14 BUREAU OF ALCOHOL TOBACCO AND FIREARMS; SAN DIEGO 15 COUNTY PLANNING AND 16 DEVELOPMENT SERVICES; AND SAN DIEGO COUNTY SHERIFF’S 17 DEPARTMENT, 18 Defendants. 19 20 Presently before the Court is Defendant Bureau of Alcohol Tobacco and Firearms’ 21 (“ATF”) Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 22 12(b)(6) (“Motion”). (ECF No. 10.) Plaintiff did not file an opposition, and Defendant 23 ATF did not file a reply. 24 A district court may grant an unopposed motion pursuant to a local rule which 25 permits as much. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). If an opposing party 26 fails to file a response in opposition to a motion, that failure may constitute consent to the 27 granting of a motion pursuant to Local Rule 7.1(f)(3)(c). “Although there is . . . a policy 28 favoring disposition on the merits, it is the responsibility of the moving party to move 1 towards that disposition at a reasonable pace, and to refrain from dilatory or evasive 2 tactics.” In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994). 3 Before dismissing an action for failure to abide by local rules, “the district court is 4 required to weigh several factors: ‘(1) the public’s interest in expeditious resolution of 5 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 6 defendants; (4) the public policy favoring disposition of cases of their merits; and (5) the 7 availability of less drastic sanctions.’” Ghazali, 46 F.3d at 53 (quoting Henderson v. 8 Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)). The Ninth Circuit has recognized that the 9 first and fourth factors cut in opposite directions. See Yourish v. Cal. Amplifier, 191 F.3d 10 983, 990 (9th Cir. 1999) (finding that the first factor always weighs in favor of dismissal); 11 Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir. 1998) (stating that the fourth 12 factor always weighs against dismissal). 13 The second, third, and fifth Ghazali factors weigh in favor of dismissing this action. 14 As of the date of this Order, Plaintiff has not filed an opposition. Plaintiff’s failure to 15 oppose the Motion indicates Plaintiff has abandoned this lawsuit and consents to this Court 16 granting the Motion. The court’s need to manage its docket, the risk of prejudice to 17 defendant by further delays in litigation, and the lack of suitably less drastic sanctions 18 supports dismissal. While there is a public policy favoring disposition of cases on their 19 merits, this Court cannot do so because Plaintiff is barred from proceeding in this case 20 under Local Rule 83.3(j). Finding that the Ghazali factors weigh in favor of granting the 21 Defendant ATF’s unopposed Motion, the Court grants Defendant ATF’s Motion pursuant 22 to Local Rule 7.1(f)(3)(c). 23 Additionally, pursuant to Local Rule 83.3(j) only “natural persons” may proceed pro 24 se in this Court. A person may only appear pro se on behalf of themself and has “no 25 authority to appear as an attorney for others.” McGrath v. Home Depot USA, Inc., 298 26 F.R.D. 601, 609 (S.D. Cal. Apr. 10, 2014). Local Rule 83.3(j) further provides that 27 “corporations, partnerships and other legal entities, may appear in court only through an 28 attorney permitted to practice.” This Court issued an Order to Show Cause (“OSC”) for 1 ||why this case should not be dismissed pursuant to Local Rule 83.34). (ECF No. 8.) 2 || Plaintiff filed a response challenging the constitutionality of Local Rule 83.3(j). (See ECF 3 ||No. 9.) But it is well-settled that “[a] corporation may appear in federal court only through 4 || licensed counsel.” United States v. High Country Broad. Co., Inc., 3 F.3d 1244, 1245 (9th 5 || Cir. 1993); see also D-Beam Ltd. P’ship v. Roller Derby Skates, Inc., 366 F.3d 972, 973- 6 || 74 (9th Cir. 2004) (same). 7 Plaintiff is a limited liability company (“LLC”). Andrew Huss, an individual 8 || appearing pro se, is the signatory for Plaintiff Ridgeline Tactical LLC on all filings. It 9 ||appears, based on Plaintiff's response to the OSC, that it is not going to retain counsel. 10 ||(See ECF No. 9.) Because Plaintiff cannot proceed pro se on behalf of an LLC, this entire 11 ||case is DISMISSED without prejudice.! 12 IT IS SO ORDERED. 13 || Dated: August 28, 2023 Vir WM. 14 Hon. Dana M. Sabraw, Chief Judge 15 United States District Court 16 17 18 19 20 21 22 23 24 25 26 27 28 ‘Tf Plaintiff elects to file an amended complaint asserting claims on behalf of an LLC, it must do so via counsel.