Opinion
Case No. 2:09-cv-2181-LDG (RJJ).
June 9, 2010
ORDER
Defendants Patti Michaely (Patti) and Robb Evans (Evans) move to be dismissed (#48) from the complaint of plaintiff, The Galina Sudai 2009 Irrevocable Trust for the Benefit of Her Handicapped Son, Michael Kubrak ("Trust"). The Trust has not timely opposed. This failure constitutes consent to the granting of the motion. See, L.R. 7-2(d).
Dismissal is particularly appropriate in this instance as the present motion is Patti and Evans' second motion to dismiss. They filed their first motion to dismiss in January, 2010. The Trust never filed an opposition to that motion. Rather, on the penultimate day to oppose, the Trust moved for an additional 45 days to file an opposition. The Trust asserted that it was retaining new counsel. Subsequently, and on the penultimate day of additional time, the Trust filed its First Amended Complaint, rendering moot the first motion to dismiss.
Patti and Evans then filed the instant motion to dismiss the Amended Complaint. The Trust responded using the same strategy: on the penultimate day to file an opposition, the Trust moved for an additional 45 days to file an opposition as it was retaining new counsel.
In granting the Trust's second request for additional time, the court notified the Trust that the court would not grant any further enlargement of time to oppose the motion to dismiss. The court also expressly notified the Trust that the failure to timely file points and authorities in opposition to the motion to dismiss would constitute a consent to the granting of the motion to dismiss. Accordingly, as the Trust failed to timely oppose the motion to dismiss,
THE COURT ORDERS that Patti Michaely and Robb Evans' Motion to Dismiss (#48) is GRANTED; Plaintiffs' complaint is DISMISSED as to Patti Michaely and Robb Evans.