Hart v. United States

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 JOHANN EVERT HART, Case No.: 23-CV-1442-CAB-BLM 10 Plaintiff, ORDER GRANTING UNOPPOSED 11 v. MOTION TO DISMISS 12 [Doc. No. 5] 13 UNITED STATES OF AMERICA, 14 Defendant. 15 16 This matter is before the Court on a motion to dismiss filed by Defendant the United 17 States of America. [Doc. No. 5.] The motion was filed on October 6, 2023, and set a 18 hearing date (for briefing purposes only) of November 13, 2023. Civil Local Rule 7.1.e.2 19 requires a party opposing a motion to file an opposition or statement of non-opposition no 20 later than fourteen calendar days before the noticed hearing. Thus, based on the hearing 21 date of November 13, 2023, Plaintiff’s opposition to the motion to dismiss was due on 22 October 30, 2023. No opposition has been filed. Under the local rules, Plaintiff’s failure 23 to oppose “may constitute a consent to the granting of [the] motion.” See S.D. Cal. CivLR 24 7.1.f.3.c. 25 District courts have broad discretion to enact and apply local rules, including 26 dismissal of a case for failure to comply with the local rules. Ghazali v. Moran, 46 F.3d 27 52, 53 (9th Cir. 1995) (affirming grant of an unopposed motion to dismiss under local rule 28 by deeming a pro se litigant’s failure to oppose as consent to granting the motion). Before 1 dismissing an action for failure to comply with local rules, the district court “weigh[s] 2 ||several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the 3 || court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 4 || policy favoring disposition of cases on their merits; and (5) the availability of less drastic 5 ||sanctions.’” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 6 || (9th Cir. 1986)). 7 Here, the Ghazali factors support granting the motion based on the lack of opposition 8 || because Plaintiffs failure to file anything with this Court since the case was removed here, 9 ||including failing to oppose the motion to dismiss, indicates that Plaintiff has abandoned 10 lawsuit and consents to the granting of the motion to dismiss. The public’s interest in 11 |}expeditious resolution of litigation, the court’s need to manage its docket, the risk of 12 || prejudice to Defendant by further delays in this litigation, and the lack of appropriate less 13 || drastic sanctions all support dismissal. Moreover, upon review of the motion and of the 14 record, Plaintiff's lack of opposition is unsurprising considering that for all of the reasons 15 || set forth in the motion to dismiss, the Court lacks subject matter jurisdiction over □□□□□□□□□□ □ 16 ||claim. Therefore, the Court assumes the lack of opposition to Defendant’s motion to 17 || dismiss is intentional and constitutes Plaintiff’s consent to the granting of the motion. 18 Accordingly, the motion to dismiss is GRANTED based on the lack of opposition 19 ||and because the Court is persuaded by Defendant’s arguments for dismissal for lack of 20 || subject matter jurisdiction. The complaint is therefore DISMISSED. The Clerk of Court 21 |/is instructed to CLOSE this case. 22 It is SO ORDERED. 23 ||Dated: November 6, 2023 € ZL 24 Hon. Cathy Ann Bencivengo 25 United States District Judge 26 27 28