Opinion
3:20-cv-1535 W (DEB)
07-06-2021
ANTHONY CAROLINO, et al., Plaintiffs, v. CITY OF SAN DIEGO, et al., Defendants.
ORDER DISMISSING CASE WITHOUT LEAVE TO AMEND
Hon. Thomas J. Whelan, United States District Judge
Defendants City of San Diego, Jose Mendez and Brad Keyes moved to dismiss and strike Plaintiffs' First Amended Complaint (“FAC”). (MTD FAC [Doc. 13].) In response, Plaintiffs filed a document entitled “CCP Declaration of David Carolino in Support of his Standing to Bring this Action as the Legal Heir of His Brother Dennis Carolino (CCP 337.32).” (D. Carolino Decl. [Doc. 14].) Plaintiffs, however, did not file a substantive opposition that addressed the arguments raised in Defendants' motion.
Among the issues Defendants raised in the motion to dismiss the FAC was Plaintiffs' lack of standing. (See e.g. MTD FAC P&A [Doc. 13-1] 6:22-10:5.) Because Plaintiffs failed to substantively respond to Defendants' argument and instead filed a document that created more uncertainty regarding their standing (see MTD FAC Order [Doc. 17] 9:22-10:16), on June 21, 2021, this Court issued an Order (1) Granting Motion to Dismiss and (2) Requiring Further Briefing Regarding Standing. (Id.) The order provided Plaintiffs with another opportunity to address whether they have standing to pursue wrongful-death claims:
Defendants' previous motion to dismiss the Complaint also argued Plaintiffs' lack standing. (See e.g. MTD Compl. P&A [Doc. 2-1] 4:24-7:24, 8:1-18.) Because Plaintiffs did not dispute that the Complaint's allegations failed to establish standing and instead requested leave to amend, this Court granted Defendants' motion with leave to amend. (MTD Compl. Order [Doc. 8] 5:10-14.)
Plaintiffs shall address whether under California law they have standing to pursue wrongful-death claims on behalf of Dennis Carolino given that they do not know whether their mother is alive. Plaintiffs' brief may not exceed five pages and shall be filed on or before June 28, 2021 . Defendants' may file a response not to exceed five pages on or before July 2, 2021 Upon submission of the above briefing, the Court shall issue an order specifying whether the dismissal is with or without leave to amend.
Plaintiffs are cautioned that if they fail to timely file the above brief, the Court will issue an order granting the motion to dismiss without leave to amend.(Id. 11:7-14.)
To date, Plaintiffs have failed to file the supplemental brief addressing whether they have standing. Nor have they filed a request for additional time to respond. Accordingly, the Court ORDERS the case DISMISSED WITHOUT LEAVE TO AMEND
IT IS SO ORDERED.