Shields v. Dollar Tree, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT B SHIELDS, individually and Case No.: 23-CV-925 JLS (BLM) on behalf of all others similarly situated, 12 ORDER GRANTING DEFENDANT’S Plaintiff, 13 MOTION TO DISMISS PURSUANT v. TO CIVIL LOCAL RULE 7.1(f)(3)(c) 14 DOLLAR TREE, INC., 15 (ECF No. 7) Defendant. 16 17 Presently before the Court are Defendant Dollar Tree, Inc.’s Motion to Dismiss the 18 Complaint (“Mot.,” ECF No.7) and Defendant’s Memorandum of Points and Authorities 19 in support thereof (“Mem.,” ECF No. 7-1). No opposition to the Motion has been filed. 20 See generally Docket. For the reasons that follow, the Court GRANTS Defendant’s 21 Motion pursuant to Civil Local Rule 7.1(f)(3)(c). 22 BACKGROUND 23 Plaintiff Robert B. Shields initiated this action on May 19, 2023. See generally ECF 24 No. 1 (“Compl.”). In a nutshell, the Complaint alleges that Defendant has violated federal 25 and state law by selling glucosamine sulfate supplements with mislabeled ingredients. See 26 generally id. Claiming to have purchased one of the mislabeled supplements from 27 Defendant, Plaintiff asserts causes of action—on behalf of himself and others similarly 28 situated—for violations of California’s Consumer Legal Remedies Act, Unfair 1 Competition Law, and False Advertising Law. See id. at 23–31. The Complaint also 2 includes claims for breach of warranty under the Magnuson Moss Warranty Act, id. at 21– 3 22, and for unjust enrichment and restitution, id. at 31–32. 4 Pursuant to Federal Rule of Civil Procedure 4(m), Plaintiff was required to serve 5 Defendant on or before August 17, 2023. As Plaintiff had failed to file proof of service by 6 that date, the Court ordered Plaintiff to show cause why this action should not be dismissed 7 for failure to timely effect service on August 23, 2023. See ECF No. 3. Plaintiff responded 8 by seeking an extension of Plaintiff’s deadline to serve, see ECF No. 4, which the Court 9 granted, see ECF No. 5. 10 Defendant then filed the instant Motion on September 29, 2023. See Mot. In its 11 Motion, Defendant raised several grounds for dismissing the Complaint, including that the 12 Complaint failed to state claims for which relief could be granted, see generally Mem.; 13 Plaintiff’s claims were preempted by federal law, id. at 9–11; and the Complaint failed to 14 satisfy Federal Rule of Civil Procedure 9(b)’s particularity requirement, id. at 15–17. 15 The Motion was originally noticed for a hearing on November 8, 2023. See Mot. 16 Accordingly, per Civil Local Rule 7.1(e)(2), Plaintiff was required to respond to the Motion 17 on or before October 25, 2023. He failed to do so. See generally Docket. Plaintiff’s silence 18 has since continued, though the Court noted his noncompliance when the Court took the 19 Motion under submission. See ECF No. 11. 20 DISCUSSION 21 The Ninth Circuit has held that, pursuant to a local rule, a district court may properly 22 grant a motion to dismiss for failure to respond to a motion. See Ghazali v. Moran, 23 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to file timely 24 opposition papers where plaintiff had notice of the motion and ample time to respond). 25 Here, a local rule allows the Court to grant the Motion. Civil Local Rule 7.1(f)(3)(c) 26 provides: “If an opposing party fails to file [an opposition] in the manner required by Civil 27 Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other 28 request for ruling by the court.” 1 In determining whether to dismiss an action, the Court must weigh several factors: 2 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 3 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 4 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” 5 Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 6 1986)). The first and fourth factors cut in opposite directions. See Yourish v. Cal. 7 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“[T]he public’s interest in expeditious 8 resolution of litigation always favors dismissal.”); Hernandez v. City of El Monte, 9 138 F.3d 393, 401 (9th Cir. 1998) (stating the fourth factor weighs against dismissal). The 10 Court therefore considers the substance of factors two, three, and five. 11 Here, the second factor weighs in favor of dismissal. The Court must manage its 12 docket to ensure the efficient provision of justice. Plaintiff had notice of the Motion yet 13 failed to file a timely opposition. Further, Plaintiff has not provided any excuse for his 14 failure to timely file an opposition. The Court cannot continue waiting for Plaintiff to take 15 action, and a case cannot move forward when the plaintiff fails to defend his case. Further, 16 Plaintiff is represented by an attorney and nonetheless has failed to comply with the rules 17 of procedure. See Holt v. I.R.S., 231 Fed. App’x. 557, 558 (9th Cir. 2007) (holding court 18 did not abuse its discretion in dismissing action for failure to file an opposition and 19 rejecting plaintiff’s contention that the district court should have warned her of the 20 consequences of failing to file an opposition). 21 The third factor, which considers the prejudice to a defendant that results from a 22 plaintiff’s inaction, also favors dismissal. See Malone v. U.S.P.S., 833 F.2d 128, 131 23 (9th Cir. 1987). Under this factor, “the risk of prejudice . . . is related to [Plaintiff’s] reason 24 for defaulting in failing to timely” file his opposition. Yourish, 191 F.3d at 991. Where, 25 as here, a plaintiff fails to provide any excuse for his conduct or contact the Court regarding 26 said failure, this factor weighs in favor of dismissal. See, e.g., Enders v. Countrywide 27 Home Loans, Inc., No. C 09-3213SBA, 2009 WL 4018512, at *2 (N.D. Cal. 28 Nov. 16, 2009). 1 As to the fifth factor, where the plaintiff does not oppose dismissal, it is “unnecessary 2 || for the Court to consider less drastic alternatives.” Rodriguez v. Nationstar Mortg. LLC, 3 || No. 2:16-—CV—5962-ODW(SK), 2016 WL 4581402, at *1 (C.D. Cal. Sept. 1, 2016). Still, 4 ||the Court did employ the less drastic alternative of giving notice to the Parties that no 5 || opposition had been filed. As noted above, the Court filed an Order vacating the hearing 6 the Motion and taking the matter under submission. See ECF No. 11. In that Order, the 7 Court noted that no opposition had been filed. See id. Stil, Plaintiff filed no opposition. 8 || This factor therefore weighs in favor of dismissal as well. 9 CONCLUSION 10 Finding that the Ghazali factors weigh in favor of granting the unopposed Motion, 11 |/the Court GRANTS Defendant’s Motion to Dismiss (ECF No. 7) pursuant to Civil Local 12 ||Rule 7.1()(3)(c). Although Defendant requests that the Court dismiss the Complaint with 13 || preyudice, Mem. at 21, the Court finds dismissal with prejudice premature. Accordingly, 14 ||the Court DISMISSES WITHOUT PREJUDICE Plaintiff's Complaint (ECF No. 1). 15 || Plaintiff MAY FILE an amended complaint curing the deficiencies identified in 16 ||Defendant’s Motion within fourteen (14) days of the date on which this Order is 17 |/electronically docketed. Should Plaintiff fail to file an amended pleading in accordance 18 || with this Order, the Court will enter a final order dismissing this civil action based on 19 || Plaintiff’s failure to prosecute in compliance with a court order requiring amendment. See 20 || Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does not take advantage 21 ||of the opportunity to fix his complaint, a district court may convert the dismissal of the 22 ||complaint into dismissal of the entire action.”). 23 IT IS SO ORDERED. 24 Dated: November 16, 2023 □□ 5 pee Janis L. Sammartino United States District Judge 26 27 28