Lemke v. Jander

• Court: District Court, S.D. California
• Decided: May 5, 2020
• Docket: 3:20-cv-00362
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD G. LEMKE, Case No.: 20-CV-362 JLS (KSC)

12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. UNOPPOSED MOTION TO DISMISS

14 GARY D. JANDER, (ECF No. 3) 15 Defendant. 16 17 Presently before the Court is Defendant Gary D. Jander’s Motion to Dismiss (ECF 18 No. 3). Plaintiff filed no opposition to the Motion. 19 Under the Southern District’s local rules, “[i]f an opposing party fails to file [an 20 opposition] . . . that failure may constitute a consent to the granting of a motion or other 21 request for ruling by the court.” Civ. L. R. 7.1(f)(3)(c). “Failure to follow a district court’s 22 local rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 23 1995) (affirming dismissal for failure to file timely opposition papers where plaintiff had 24 notice of the motion and ample time to respond). When determining whether to dismiss 25 for failure to follow local rules, the court is required to weigh several factors: “(1) the 26 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 27 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition 28 /// 1 || of cases on their merits; and (5) the availability of less drastic sanctions.” Ghazali, 46 F.3d 2 || at 53 (quoting Henderson vy. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). 3 Here, Plaintiff had notice of Defendants’ Motion but failed to file an opposition. The 4 Court finds that after weighing the factors, dismissal is appropriate. Starting with the first 5 ||two factors, the public’s interest in expeditious resolution of the litigation and the Court’s 6 ||need to manage its docket both weigh in favor of dismissal. The third factor also weighs 7 favor of dismissal because the Court finds no risk of prejudice to Defendant if the claims 8 |}against him are dismissed. The fourth factor always weighs against dismissal. See 9 || Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir. 1998) (noting the fourth factor 10 ||always weighs against dismissal). Finally, the fifth factor weighs in favor of dismissal 11 || because it is “unnecessary for the Court to consider less drastic alternatives” where the 12 || plaintiff does not oppose dismissal. Rodriguez v. Nationstar Mortg. LLC, No. 2:16-—CV- 13 |}5962-ODW(SK), 2016 WL 4581402, at *1 (C.D. Cal. Sept. 1, 2016). 14 The Court therefore GRANTS Defendant’s Motion for lack of subject matter 15 ||jurisdiction (ECF No. 3) and DISMISSES WITHOUT PREJUDICE Plaintiff's 16 |}Complaint. Plaintiff may file an amended complaint, if any, within thirty (30) days from 17 date this Order is electronically docketed. Failure to file within the time allotted may 18 ||result in the dismissal of this action in its entirety. 19 IT IS SO ORDERED. 20 Dated: May 5, 2020 tt f Le 21 on. Janis L. Sammartino 9 United States District Judge 23 24 25 26 27 28