Filed: Nov. 05, 2019
Latest Update: Nov. 05, 2019
Summary: ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION TO DISMISS [DOC. 3] THOMAS J. WHELAN , District Judge . Pending before the Court is Defendant FCA US LLC's motion to dismiss Count III of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ( Mot. [Doc. 3].) Plaintiff has failed to oppose. The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons that follow, the Court GRANTS the motion [Doc. 3]. Civil Local Rule 7.
Summary: ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION TO DISMISS [DOC. 3] THOMAS J. WHELAN , District Judge . Pending before the Court is Defendant FCA US LLC's motion to dismiss Count III of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ( Mot. [Doc. 3].) Plaintiff has failed to oppose. The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons that follow, the Court GRANTS the motion [Doc. 3]. Civil Local Rule 7.1..
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ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION TO DISMISS [DOC. 3]
THOMAS J. WHELAN, District Judge.
Pending before the Court is Defendant FCA US LLC's motion to dismiss Count III of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mot. [Doc. 3].) Plaintiff has failed to oppose. The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons that follow, the Court GRANTS the motion [Doc. 3].
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 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).
Here, based on the October 28, 2019 hearing date for Defendant's motion, Plaintiff's opposition was due no later than October 11, 2019. However, Plaintiff did not file any opposition and has 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 the "Notice of Electronic Filing" (NEF) 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 Defendant's motion as consent to granting it.
In light of the foregoing, the Court GRANTS Defendant's motion to dismiss, and DISMISSES WITHOUT PREJUDICE Plaintiff's third cause of action for violation of Business & Professions Code sections 17531 and 17535. [Doc. 3.] Because Plaintiff's other causes of action remain, the Clerk of the Court shall not close this case.
Plaintiff is admonished that a second failure to oppose a noticed motion to dismiss will result in a dismissal without leave to amend on the ground of prejudice resulting from delay and needless expense.
IT IS SO ORDERED.
