Gross v. Stufflebean

• Court: District Court, S.D. California
• Decided: February 3, 2022
• Docket: 3:21-cv-02109
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARO B. GROSS, Case No.: 21-CV-2109 JLS (DEB)

12 Plaintiff, ORDER GRANTING DEFENDANTS 13 v. JOCELYN MICHELS STUFFLEBEAN, JOHN 14 JOCELYN MICHELS STUFFLEBEAN; STUFFLEBEAN, DAVID I. GROSS, JOHN STUFFLEBEAN; DAVID I. 15 MIEKE STRAND, LAUREN E. GROSS; MIEKE STRAND; LAUREN E. JONES, AND BART CALL’S 16 JONES; JULIE A. AMEDE; JOSEPH F. UNOPPOSED MOTION TO DISMISS DERROUGH; WILLIAM HOYT; and 17 BART CALL, (ECF No. 10) 18 Defendants. 19

20 Presently before the Court is Defendants Jocelyn Michels Stufflebean, John 21 Stufflebean, David I. Gross, Mieke Strand, Lauren E. Jones, and Bart Call’s (collectively, 22 “Moving Defendants”) Motion to Dismiss (“Mot.,” ECF No. 10). No opposition to the 23 Motion has been filed. See generally Docket. 24 The Ninth Circuit has held that, pursuant to a local rule, a district court may properly 25 grant a motion to dismiss for failure to respond to a motion. See generally Ghazali v. 26 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming dismissal for failure to file timely 27 opposition papers where plaintiff had notice of the motion and ample time to respond). 28 Here, a local rule allows the Court to grant the Motion. Civil Local Rule 7.1(f)(3)(c) 1 provides: “If an opposing party fails to file [an opposition] in the manner required by Civil 2 Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other 3 request for ruling by the court.” Unless the Court orders otherwise, pursuant to Civil Local 4 Rule 7.1(e)(2), an opposition must be filed fourteen days prior to the noticed hearing. The 5 hearing for the present Motion was set for February 10, 2022, at 1:30 p.m.; thus, any 6 opposition was due on January 27, 2022. 7 In determining whether to dismiss an action, the court is required to weigh several 8 factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 9 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 10 favoring disposition of cases on their merits; and (5) the availability of less drastic 11 sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 12 (9th Cir. 1986)). The Ninth Circuit has recognized that the first and fourth factors cut in 13 opposite directions. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (first 14 factor always weighs in favor of dismissal); Hernandez v. City of El Monte, 138 F.3d 393, 15 401 (9th Cir. 1998) (fourth factor always weighs against dismissal). Therefore, the Court 16 considers the substance of factors two, three, and five. 17 Here, the second factor weighs in favor of dismissal. The Court must manage its 18 docket to ensure the efficient provision of justice. Plaintiff Daro B. Gross (“Plaintiff”) had 19 notice of the Motion yet failed to file a timely opposition. Plaintiff has not provided any 20 excuse for his failure to file a timely opposition to the present Motion. The Court cannot 21 continue waiting for Plaintiff to take action, and a case cannot move forward when the 22 plaintiff fails to defend its case. 23 As to the third factor, the Court finds no risk of prejudice to Moving Defendants if 24 it grants their Motion and provides them with the relief they seek. Nor would Plaintiff be 25 significantly prejudiced, given that the Court’s dismissal is without prejudice, for the 26 reasons provided below. Thus, this factor also weighs in favor of dismissal. 27 As to the fifth factor, where the plaintiff does not oppose dismissal, it is “unnecessary 28 for the Court to consider less drastic alternatives.” Rodriguez v. Nationstar Mortg. LLC, 1 || No. 2:16—CV—5962-ODW(SK), 2016 WL 4581402, at *1 (C.D. Cal. Sept. 1, 2016). Still, 2 ||the Court did employ the less drastic alternative of giving notice to the Parties that no 3 opposition had been filed. On February 2, 2022, the Court filed an Order vacating the 4 || hearing on the Motion and taking the matter under submission. See ECF No. 12. In that 5 || Order, the Court noted that no opposition had been filed. See id. Still, Plaintiff filed no 6 || opposition. This factor therefore weighs in favor of dismissal as well. 7 Finding that the Ghazali factors, considered as a whole, weigh in favor of granting 8 ||Moving Defendants’ unopposed Motion, the Court GRANTS the Motion (ECF No. 10) 9 DISMISSES WITHOUT PREJUDICE Plaintiff's Complaint (ECF No. 3) for failure 10 || to state a claim upon which relief can be granted. Although Moving Defendants request 11 || that the Court deny leave to amend, the Court finds dismissal with prejudice unduly harsh 12 || at this early stage in the proceedings, particularly given Plaintiff's pro se status. Thus, 13 || Plaintiff MAY FILE an amended complaint curing the deficiencies identified in Moving 14 || Defendants’ Motion within twenty-eight (28) days of the date on which this Order is 15 || electronically docketed. Should Plaintiff fail to file an amended pleading in accordance 16 || with this Order, the Court will enter a final order dismissing this civil action based on 17 || Plaintiff’s failure to prosecute in compliance with a court order requiring amendment. 18 || See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take 19 || advantage of the opportunity to fix his complaint, a district court may convert the dismissal 20 || of the complaint into dismissal of the entire action.”). 21 IT IS SO ORDERED. 22 ||Dated: February 3, 2022 tt 23 ja Janis L. Sammartino United States District Judge 24 25 26 27 28