Opinion
21-CV-82 TWR (MSB)
06-04-2021
ORLANDO GARCIA, Plaintiff, v. SOULDRIVER, L.P., a Delaware Limited Partnership; SOULDRIVER LESSEE, INC., a Delaware Corporation; and Does 1-10, Defendants.
ORDER VACATING HEARING AND GRANTING UNOPPOSED MOTION TO DISMISS (ECF No. 5)
Honorable Todd W. Robinson United States District Court Judge
On October 30, 2020, Plaintiff Orlando Garcia filed this action against Defendants Souldriver, L.P. and Souldriver Lessee, Inc. in the Superior Court of California, County of San Diego. (See ECF No. 1-1.) On January 15, 2021, Defendants removed, (see ECF No. 1), and on March 3, 2021, Defendants filed the instant Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (“Mot., ” ECF No. 5). The Court set the Motion for hearing on June 9, 2021. Pursuant to the undersigned's Standing Order for Civil Cases, Plaintiff was required to file a response in opposition to the Motion on or before May 12, 2021. See also S.D. Cal. Civ. L.R. 7.1.e.2 (stating that “each party opposing a motion . . . must file that opposition or statement of non-opposition . . . not later than fourteen (14) calendar days prior to the noticed hearing”). Plaintiff has not yet filed an opposition brief or statement of non-opposition in response to Defendants' Motion. (See Docket.)
The Ninth Circuit has held that a district court may grant an unopposed motion to dismiss where a local rule permits but does not require it to do so. See generally, Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Here, Civil Local Rule 7.1.f.3.c provides, “[i]f an opposing party fails to file the papers in the manner required by [the relevant] Civil Local Rule[s], that failure may constitute a consent to the granting of a motion or other request for ruling by the court.” As such, the Court has the option of granting Defendants' Motion on the basis of Plaintiff's failure to oppose. Generally, public policy favors disposition of cases on their merits. See Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). However, a case cannot move towards resolution on the merits when the plaintiff fails to defend his or her complaint against a Rule 12 motion. Accordingly, the Court VACATES the hearing set for June 9, 2021, GRANTS Defendants' unopposed Motion to Dismiss, and DISMISSES WITHOUT PREJUDICE Plaintiffs Complaint.
IT IS SO ORDERED.