Opinion
21-CV-1551 W (AGS)
03-29-2022
RYDER GEAR, LLC, et al., Plaintiffs, v. FORWARD AIR SERVICES, LLC, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [DOC. 5] WITHOUT LEAVE TO AMEND
Hon. Thomas J. Whelan United States District Judge.
Pending before the Court is Defendant Forward Air Services, LLC's motion to dismiss Counts 2 through 7 in the Complaint and one of the named Plaintiffs under Federal Rule of Civil Procedure 12(b)(6). Count 1 in the Complaint asserts a violation of the Carmack Amendment under 49 U.S.C. § 14706. (See Compl. [Doc. 1].) Counts 2 through 7 assert state-based violations. (See id.) Plaintiffs are Ryder Gear LLC (“Ryder”) and Anthony Robert Bracalente, individually and as Chief Executive Officer of Ryder. (Id. ¶¶ 1-3.)
Defendant argues the six state-based counts are preempted under the Carmack Amendment. (MTD P&A [Doc. 5-1] 4:1-7:17.) Defendant also argues Plaintiff Bracalente lacks standing because the cargo at issue belonged to Ryder, not him. (Id. 7:18-9:15.)
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 held that a district court may properly grant a motion to dismiss for failure to respond. See Ghazali v. Moran, 46 F.3d 52, 53 (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).
Here, based on the hearing date, Plaintiffs' opposition was due on or before October 25, 2021. Plaintiffs, however, did not file an opposition and have not requested additional time to do so. Moreover, there is no evidence before the Court that Defendant's moving papers failed to reach the mailing address designated in Defendant's Proof of Service or that Plaintiffs were not aware of the pending motion. Relying on Civil Local Rule 7.1(f.3.c), the Court deems Plaintiffs' failure to oppose Defendant's motion as consent to the merits.
Based on the foregoing, the Court GRANTS Defendant's motion to dismiss [Doc. 5] and ORDERS as follows:
• Counts 2 through 7 are DISMISSED WITHOUT LEAVE TO AMEND
• Plaintiff Anthony Robert Bracalente is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED