Opinion
Case No. 11-cv-2345-L(DHB)
02-14-2013
IAN COLLINS, Plaintiff, v. MISSION GORGE LIQUOR, et al., Defendants.
ORDER GRANTING UNOPPOSED
MOTION TO SET ASIDE DEFAULT
[DOC. 43]
On December 10, 2012, the Clerk of the Court entered default against Defendants Mission Gorge Liquor and Waleed Toma. (Doc. 40.) Defendants now move to set aside the entry of default. To date, Plaintiff Ian Collins has not opposed Defendants' motion.
Defendants' motion is sometimes ambiguous as to which entry of default they are requesting be set aside. At times, the motion refers to Defendants plurally, but other times—for example, in the conclusion—the motion refers to Defendant singularly. The Court will nonetheless interpret this request to apply to both Mission Gorge Liquor and Waleed Toma.
Civil Local Rule 7.1(f.3.c) provides that "[i]f an opposing party fails to file papers in the manner required by Local Rule 7.1.e.2, that failure may constitute a consent to the granting of that motion or other ruling by the court." The Ninth Circuit has even held that a district court may properly grant a motion to dismiss for failure to respond. See generally Ghazali v. Moran, 46 F.3d 52, 52 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to file timely opposition papers where plaintiff had notice of the motion and ample time to respond).
In this case, based on the February 25, 2013 hearing date, Plaintiff's opposition was due by February 11, 2013. However, Plaintiff did not file an opposition and has not requested additional time to do so. Moreover, there is no evidence before the Court that Defendants' moving papers failed to reach the mailing address designated in the Proof of Service or that Plaintiff was not aware of the pending motion. Therefore, relying on Civil Local Rule 7.1(f.3.c), the Court deems Plaintiff's failure to oppose Defendants' motion as consent to granting it.
In light of the foregoing, the Court GRANTS Defendants' motion to set aside the entry of default. (Doc. 43.) Defendants shall answer or otherwise respond to the complaint by February 28, 2013.
IT IS SO ORDERED.
______________
M. James Lorenz
United States District Court Judge
COPY TO: HON. DAVID H. BARTICK
UNITED STATES MAGISTRATE JUDGE
ALL PARTIES/COUNSEL