NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 15 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RAMBOD SOTOODEH; STELLA No. 24-3848 SOTOODEH; 88 SWEET, INC., D.C. No. 2:23-cv-06883-MEMF-AS Plaintiffs - Appellants,
v. MEMORANDUM*
CITY OF SOUTH EL-MONTE, a municipal corporation; JOE MARTINEZ, South El Monte Code Enforcement Supervisor; VINH VO, City of South El Monte Code Enforcement Officer,
Defendants - Appellees.
Appeal from the United States District Court for the Central District of California Maame Ewusi-Mensah Frimpong, District Judge, Presiding
Submitted May 13, 2025** Pasadena, California
Before: R. NELSON, LEE, and SUNG, Circuit Judges. Concurrence by Judge R. NELSON.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). When the district court ordered the Sotoodeh family and their company to
respond to a motion to dismiss, they failed to comply. Citing a local rule, the district
court granted the motion and dismissed the Sotoodehs’ suit with prejudice. We
review that dismissal for an abuse of discretion. Ghazali v. Moran, 46 F.3d 52, 53
(9th Cir. 1995) (per curiam). We affirm.
The district court did not abuse its discretion in dismissing the Sotoodehs’
suit. The Sotoodehs failed to file a court-ordered opposition to a motion to dismiss.
Under Central District of California Local Rule 7-12, when a party fails to file a
“required” brief, the court may treat that as “consent to the granting” of the motion.
The district court did not discuss the factors that we require courts to consider
before dismissing a suit under local rules: the interests in resolving litigation quickly
and on the merits, the need to manage a docket, the risk of prejudice, and the
availability of less drastic sanctions. Ghazali, 46 F.3d at 53–54 (citation omitted).
Even so, our precedent does not require district courts to discuss those factors
expressly, and we may weigh them in the first instance. Id.; Ferdik v. Bonzelet, 963
F.2d 1258, 1261 (9th Cir. 1992).
Weighing those factors, three favor dismissal. Granting a motion to dismiss
when a party fails to file a court-ordered response helps the court manage its docket
and resolve litigation promptly. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th
Cir. 2002). And because the district court gave the Sotoodehs extra time to file an
2 24-3848 opposition and warned that it would dismiss their suit if they failed to comply, the
availability of less drastic sanctions also supports dismissal. See Ferdik, 963 F.2d
at 1262. With these three factors favoring dismissal, the district court did not commit
a “clear error of judgment” in dismissing the Sotoodehs’ suit. Pagtalunan, 291 F.3d
at 640 (quotation omitted); Ferdik, 963 F.2d at 1262.
The Sotoodehs argue that Local Rule 7-12 conflicts with Federal Rule of Civil
Procedure 12(b)(6), which they contend prohibited the court from dismissing their
suit because they failed to oppose the motion to dismiss. Our precedent indicates
otherwise. Ghazali, 46 F.3d at 53–54. After all, the Federal Rules allow courts to
dismiss lawsuits when plaintiffs disregard court orders. Fed. R. Civ. P. 41(b); see
also Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890–91 (9th Cir.
2019).
AFFIRMED.
3 24-3848 FILED Sotoodeh v. South El-Monte, No. 24-3848 MAY 15 2025
R. Nelson, J., concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I concur in the majority’s reasoning. Because the Sotoodehs defied a court
order requiring them to respond to a motion to dismiss, our precedent allowed the
district court to grant the motion without considering its merits. I write to clarify the
boundaries of that rule.
District courts have wide latitude to “prescribe rules for the conduct of their
business.” 28 U.S.C. § 2071(a). These rules must be “consistent with” the Federal
Rules of Civil Procedure. Fed. R. Civ. P. 83(a)(1).
In the Central District of California, when a party fails to file a “required”
brief, a local rule allows the court to treat that failure as “consent to the granting” of
the motion. C.D. Cal. Local Rule 7-12. District courts across the country have
adopted similar rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)
(per curiam); ITI Holdings, Inc. v. Odom, 468 F.3d 17, 18 (1st Cir. 2006); Issa v.
Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003); Cohen v. Bd. of Trs. of Univ. of
D.C., 819 F.3d 476, 481 (D.C. Cir. 2016).
A few circuits have suggested that these local rules may, in some applications,
conflict with Federal Rule of Civil Procedure 12(b)(6). Marcure v. Lynn, 992 F.3d
625, 628 (7th Cir. 2021); Issa, 354 F.3d at 1177; Cohen, 819 F.3d at 481. Rule
12(b)(6) requires the defendant to prove that the complaint is legally insufficient.
1 Yet if a district court grants a motion to dismiss “solely” because the plaintiff didn’t
oppose the motion, the court “effectively places the burden of persuasion” on the
plaintiff. Cohen, 819 F.3d at 481; Marcure, 992 F.3d at 631.
This doesn’t prevent district courts from granting unopposed motions to
dismiss as a sanction. Every circuit to address the issue allows for that possibility.
E.g., Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Stough v. Mayville
Cmty. Schs., 138 F.3d 612, 614–15 (6th Cir. 1998); Marcure, 992 F.3d at 631; Issa,
354 F.3d at 1177–78. As do the Federal Rules. Rule 41(b) allows district courts to
dismiss a lawsuit when the plaintiff violates court orders or rules. As a result, when
a district court orders a plaintiff to respond to a motion to dismiss and the plaintiff
fails to comply, the court may grant the unopposed motion without considering its
merits.
Such a dismissal does not conflict with Rule 12(b)(6). Rule 12(b)(6) concerns
arise when the sole basis for granting a motion to dismiss is that it’s unopposed.
Only then does the dismissal “effectively shift the burden of persuasion” to the
plaintiff. Cohen, 819 F.3d at 483.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 15 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RAMBOD SOTOODEH; STELLA No. 24-3848 SOTOODEH; 88 SWEET, INC., D.C. No. 2:23-cv-06883-MEMF-AS Plaintiffs - Appellants,
v. MEMORANDUM*
CITY OF SOUTH EL-MONTE, a municipal corporation; JOE MARTINEZ, South El Monte Code Enforcement Supervisor; VINH VO, City of South El Monte Code Enforcement Officer,
Defendants - Appellees.
Appeal from the United States District Court for the Central District of California Maame Ewusi-Mensah Frimpong, District Judge, Presiding
Submitted May 13, 2025** Pasadena, California
Before: R. NELSON, LEE, and SUNG, Circuit Judges. Concurrence by Judge R. NELSON.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). When the district court ordered the Sotoodeh family and their company to
respond to a motion to dismiss, they failed to comply. Citing a local rule, the district
court granted the motion and dismissed the Sotoodehs’ suit with prejudice. We
review that dismissal for an abuse of discretion. Ghazali v. Moran, 46 F.3d 52, 53
(9th Cir. 1995) (per curiam). We affirm.
The district court did not abuse its discretion in dismissing the Sotoodehs’
suit. The Sotoodehs failed to file a court-ordered opposition to a motion to dismiss.
Under Central District of California Local Rule 7-12, when a party fails to file a
“required” brief, the court may treat that as “consent to the granting” of the motion.
The district court did not discuss the factors that we require courts to consider
before dismissing a suit under local rules: the interests in resolving litigation quickly
and on the merits, the need to manage a docket, the risk of prejudice, and the
availability of less drastic sanctions. Ghazali, 46 F.3d at 53–54 (citation omitted).
Even so, our precedent does not require district courts to discuss those factors
expressly, and we may weigh them in the first instance. Id.; Ferdik v. Bonzelet, 963
F.2d 1258, 1261 (9th Cir. 1992).
Weighing those factors, three favor dismissal. Granting a motion to dismiss
when a party fails to file a court-ordered response helps the court manage its docket
and resolve litigation promptly. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th
Cir. 2002). And because the district court gave the Sotoodehs extra time to file an
2 24-3848 opposition and warned that it would dismiss their suit if they failed to comply, the
availability of less drastic sanctions also supports dismissal. See Ferdik, 963 F.2d
at 1262. With these three factors favoring dismissal, the district court did not commit
a “clear error of judgment” in dismissing the Sotoodehs’ suit. Pagtalunan, 291 F.3d
at 640 (quotation omitted); Ferdik, 963 F.2d at 1262.
The Sotoodehs argue that Local Rule 7-12 conflicts with Federal Rule of Civil
Procedure 12(b)(6), which they contend prohibited the court from dismissing their
suit because they failed to oppose the motion to dismiss. Our precedent indicates
otherwise. Ghazali, 46 F.3d at 53–54. After all, the Federal Rules allow courts to
dismiss lawsuits when plaintiffs disregard court orders. Fed. R. Civ. P. 41(b); see
also Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890–91 (9th Cir.
2019).
AFFIRMED.
3 24-3848 FILED Sotoodeh v. South El-Monte, No. 24-3848 MAY 15 2025
R. Nelson, J., concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I concur in the majority’s reasoning. Because the Sotoodehs defied a court
order requiring them to respond to a motion to dismiss, our precedent allowed the
district court to grant the motion without considering its merits. I write to clarify the
boundaries of that rule.
District courts have wide latitude to “prescribe rules for the conduct of their
business.” 28 U.S.C. § 2071(a). These rules must be “consistent with” the Federal
Rules of Civil Procedure. Fed. R. Civ. P. 83(a)(1).
In the Central District of California, when a party fails to file a “required”
brief, a local rule allows the court to treat that failure as “consent to the granting” of
the motion. C.D. Cal. Local Rule 7-12. District courts across the country have
adopted similar rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)
(per curiam); ITI Holdings, Inc. v. Odom, 468 F.3d 17, 18 (1st Cir. 2006); Issa v.
Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003); Cohen v. Bd. of Trs. of Univ. of
D.C., 819 F.3d 476, 481 (D.C. Cir. 2016).
A few circuits have suggested that these local rules may, in some applications,
conflict with Federal Rule of Civil Procedure 12(b)(6). Marcure v. Lynn, 992 F.3d
625, 628 (7th Cir. 2021); Issa, 354 F.3d at 1177; Cohen, 819 F.3d at 481. Rule
12(b)(6) requires the defendant to prove that the complaint is legally insufficient.
1 Yet if a district court grants a motion to dismiss “solely” because the plaintiff didn’t
oppose the motion, the court “effectively places the burden of persuasion” on the
plaintiff. Cohen, 819 F.3d at 481; Marcure, 992 F.3d at 631.
This doesn’t prevent district courts from granting unopposed motions to
dismiss as a sanction. Every circuit to address the issue allows for that possibility.
E.g., Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Stough v. Mayville
Cmty. Schs., 138 F.3d 612, 614–15 (6th Cir. 1998); Marcure, 992 F.3d at 631; Issa,
354 F.3d at 1177–78. As do the Federal Rules. Rule 41(b) allows district courts to
dismiss a lawsuit when the plaintiff violates court orders or rules. As a result, when
a district court orders a plaintiff to respond to a motion to dismiss and the plaintiff
fails to comply, the court may grant the unopposed motion without considering its
merits.
Such a dismissal does not conflict with Rule 12(b)(6). Rule 12(b)(6) concerns
arise when the sole basis for granting a motion to dismiss is that it’s unopposed.
Only then does the dismissal “effectively shift the burden of persuasion” to the
plaintiff. Cohen, 819 F.3d at 483. When the plaintiff fails to file a court-ordered
opposition, the plaintiffs’ violation of the court order—not the unopposed nature of
the motion—is the basis for the dismissal.
Still, dismissals based on violations of court orders must be “consistent with”
Rule 41(b). Fed. R. Civ. P. 83(a)(1). The district court must consider the Rule 41(b)
2 factors laid out in circuit precedent. Ghazali, 46 F.3d at 53; Stough, 138 F.3d at 614–
15; see also Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161–62 (10th
Cir. 2007) (Gorsuch, J.). The court should invoke Rule 41(b) sanctions “only in
extreme circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)
(citation omitted). And the court may dismiss a suit based on the plaintiff’s failure
to file an opposition only if a court order or local rule affirmatively required the
plaintiff to file one. Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890
(9th Cir. 2019). Ordinarily, parties aren’t required to oppose motions. So local rules
that merely fix the deadline for filing a response—and do not affirmatively require
a response—aren’t enough to invoke Rule 41(b).
In sum, when a plaintiff defies a court order to oppose a motion to dismiss,
the district court may grant the unopposed motion without considering its merits.
But such dismissals should be rare, and the court must apply the Rule 41(b) analysis.
Otherwise, the court must adjudicate the unopposed motion on the merits.