Paulina Gonzalez-Chavez v. Costco Wholesale Corporation ( 2019 )

O 1 2 United States District Court 3 Central District of California 4 5 PAULINA GONZALEZ-CHAVEZ, Case No. 2:18-cv-10163-ODW 6 (GJSx) 7 Plaintiffs, 8 v. 9 10 COSTCO WHOLESALE CORPORATION et al. 11 Defendants. 12 ________________________________________ 13 ORDER GRANTING MILE HIGH EQUIPMENT, LLC PLAINTIFF’S MOTION TO 14 MODIFY THE SCHEDULING 15 Cross-Claimant, ORDER AND FOR LEAVE TO FILE AMENDED 16 v. COMPLAINT [39, 40] 17 COSTCO WHOLESALE CORPORATION, 18 CORNELIUS, INC. and ROES 1-10 19 20 Cross-Defendants. ________________________________________ 21 22 MILE HIGH EQUIPMENT, LLC 23 Third-Party Plaintiff , 24 25 v. 26 SMITH and GREENE COMPANY and MOES 1- 27 10 28 Third-Party Defendants. 1 I. INTRODUCTION 2 Third Party Plaintiff Mile High Equipment, LLC (“Mile High”) moves to 3 modify the Scheduling Order and moves for leave to file a First Amended Third-Party 4 Complaint (“FATPC”) (collectively, “Motions”). (Mot. to Modify Scheduling Order 5 (“Mot. to Modify”) 1, ECF No. 40; Mot. for Leave to File First Am. Third-Party 6 Compl. (“Mot. to file FATPC”) 1, ECF No. 39.) For the reasons that follow, the 7 Court GRANTS Mile High’s Motions.1 8 II. BACKGROUND 9 On September 28, 2018, Plaintiff Gonzalez-Chavez filed suit in Los Angeles 10 County Superior Court against Costco Wholesale Corp. and other entities for her 11 injuries arising from a slip and fall on October 24, 2016. (Notice of Removal Ex. A 12 (“Compl.”) 1–5, ECF No. 1-2.) Plaintiff alleged that Mile High “manufactured, 13 installed, distributed, supplied and serviced the ice making equipment . . . which was 14 attached to the top of the soda dispensing machine.” (Mot. to file FATPC 1; 15 Compl. 5.) 16 On March 11, 2019, Mile High filed a Third-Party Complaint against Smith and 17 Greene Company for indemnity and contribution. (See Third-Party Compl. (“TPC”), 18 ECF No. 18.) Mile High discovered that Smith and Green Company hired IMS 19 Refrigeration, Inc., Norm’s Refrigeration, LLC, and McGovern and Sons U S C E S 20 LLC, but Smith and Green Company, itself, did not install, maintain, or repair the 21 subject machines. (Mot. to Am 1.) On August 26, 2019, after considering the parties’ 22 joint stipulation, the Court issued an order dismissing Smith and Green Company as a 23 third-party Defendant. (See Minute Order, ECF No. 38.) At present, Mile High files 24 the Motions to add the entities that installed the machines at issue. (Mot. to Am 1.) 25 In the Scheduling and Case Management Order (“Scheduling Order”) 26 governing this case, the Court set July 22, 2019, as the deadline to hear motions to 27 28 1 After considering the papers filed in connection with the Motions, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 1 amend the pleadings or add parties; January 6, 2020, as fact discovery cutoff; and trial 2 to commence on June 2, 2020. (Scheduling Order 24, ECF No. 31.) On September 9, 3 2019, Mile High moved to modify the Scheduling Order and file a FATPC, and set the 4 motion for hearing on October 21, 2019. (See Mot. to Modify.) Thus, pursuant to 5 Local Rule 7-9, Hernandez’s oppositions were due no later than September 30, 2019. 6 See C.D. Cal. L.R. 7-9 (requiring oppositions to be filed no later than twenty-one days 7 before the motion hearing). However, to date, no opposition has been filed. 8 III. PLAINTIFF’S FAILURE TO OPPOSE WARRANTS DISMISSAL 9 Central District of California Local Rule 7-12 provides that the Court “may 10 decline to consider any memorandum or other document not filed within the deadline 11 set by order or local rule.” C.D. Cal. L.R. 7-12 (“The failure to file [a responsive 12 document], or the failure to file it within the deadline, may be deemed consent to the 13 granting or denial of the motion. . . .”); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 14 1995) (affirming dismissal on the basis of unopposed motion pursuant to local rule). 15 Prior to dismissing an action pursuant to a local rule, courts must weigh: “(1) 16 the public’s interest in expeditious resolution of litigation; (2) the court’s need to 17 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 18 favoring disposition of cases o[n] their merits; and (5) the availability of less drastic 19 sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 20 1423 (9th Cir. 1986)). “Explicit findings with respect to these factors are not 21 required.” Ismail v. Cty. of Orange, SACV 10-00901 VBF (AJW), 2012 WL 22 12964893, at *1 (C.D. Cal. Nov. 7, 2012) (citing Henderson, 779 F.2d at 1424; 23 accord, Malone v. U.S. Postal Serv., 833 F.2d 128, 129 (9th Cir. 1987), cert. denied, 24 488 U.S. 819 (1988)). In Ghazali, the Ninth Circuit found these factors satisfied 25 where the plaintiff received notice of the motion, had “ample opportunity to respond,” 26 yet failed to do so. See Ghazali, 46 F.3d at 54. 27 Here, parties received notice of the motions and had ample opportunity to 28 respond; however, they failed to oppose or otherwise respond. Parties are represented 1 || by counsel in this matter and their attorneys are registered CM/ECF user who receives notice of electronic filings in this action. As such, the Court construes failure to 3 | respond to Mile High’s motions as consent to the Court granting them. 4 Accordingly, pursuant to Local Rule 7-12 and Ghazali, the Court GRANTS 5 | Mile High’s motions. 6 IV. CONCLUSION 7 For the foregoing reasons, the Court GRANTS Mile High’s motion to amend 8 || the Scheduling Order. The deadline to add a party to a complaint is extended through 9 November 6, 2019. No other dates are modified. The Court GRANTS leave to 10 | amend the third-party complaint. 11 12 IT IS SO ORDERED. 13 14 October 23, 2019 15 Giedliod 7 OTIS D. WRIG HT, UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28