Beleche v. Diversified Recovery Bureau, LLC ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 ALEJANDRA BELECHE, Case No.: 19cv2472-JAH (KSC) 9 Plaintiff, ORDER GRANTING DEFENDANT’S 10 v. MOTION TO DISMISS [Doc. No. 2] 11 DIVERSIFIED RECOVERY BUREAU, LLC and DOES 1 thorough 10, 12 Defendants. 13 14 INTRODUCTION 15 Pending before the Court is Defendant Diversified Recovery Bureau’s 16 (“Defendant”) motion to dismiss Plaintiff Alejandra Beleche’s (“Plaintiff”) complaint. See 17 Doc. No. 2. Plaintiff failed to oppose Defendant’s motion. Having carefully considered 18 Defendant’s motion and Plaintiff’s failure to oppose the motion, which the Court construes 19 as consent to grant the motion’s requests, the Court hereby GRANTS Defendant’s 20 unopposed motion to dismiss. 21 BACKGROUND 22 On November 19, 2019, Plaintiff filed a complaint in California Superior Court, 23 County of San Diego, alleging violations of the Rosenthal Fair Debt Collection Practices 24 Act; the Fair Debt Collection Practices Act; and the Telephone Consumer Protection Act. 25 Doc. No. 1-3 at 6. On December 24, 2019, Defendant’s subsequently removed this action 26 to the United States District Court, Southern District of California. See generally Doc. No. 27 1. Defendant filed a motion to dismiss Plaintiff’s complaint for failure to state a claim. 28 1 Doc. No. 2. Plaintiff failed to respond to the motion. To date, Plaintiff has taken no action 2 in the case. The motion was set for a hearing, but the hearing date was vacated as the Court 3 deemed the motion suitable for adjudication without oral argument. Doc. No. 3. 4 DISCUSSION 5 Defendant seeks to dismiss the instant action for failure to state a claim as Plaintiff’s 6 claims are subject to a mandatory, binding arbitration pursuant to an agreement between 7 Plaintiff and the original creditor. Doc. No. 2. 8 Southern District of California Civil Local Rule 7.1.e.2 requires a party opposing a 9 motion to file an opposition or statement of non-opposition within fourteen calendar days 10 of the noticed hearing. Moreover, Local Rule 7.1.f.3.a states that any party choosing not to 11 oppose a motion must file a written statement that he does not oppose the motion or 12 otherwise request for ruling by the court. “If an opposing party fails to file the papers in 13 the manner required by Local Rule 7.1.e.2, that failure may constitute a consent to the 14 granting of a motion or other request for ruling by the court.” See Local Rule 7.1.f.3.c. 15 The Ninth Circuit has held that a district court may properly grant a motion to 16 dismiss as unopposed pursuant to a local rule where the local rule permits, but does not 17 require the granting of a motion for failure to respond. See Ghazali v. Moran, 46 F.3d 52, 18 53 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to timely file opposition 19 papers). Prior to granting an unopposed motion for dismissal, the Court must weigh the 20 following factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 21 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 22 policy favoring disposition of cases of their merits; and (5) the availability of less drastic 23 sanctions.” Id. (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). 24 Here, Defendant attached a Certificate of Service with their motion to dismiss, 25 representing that Defendant timely served Plaintiff with their motion. Doc. No. 2 at 12. 26 Plaintiff was provided adequate and sufficient time to prepare a written opposition to 27 Defendant’s motion, and Plaintiff did not file an opposition. Plaintiff’s failure to comply 28 with filing deadlines only favors granting Defendant’s motion to dismiss in the interest of 1 ||expeditious resolution. While public policy generally favors the disposition of cases on 2 ||their merits, the Court finds the second Ghazali factor weighs in favor of dismissal as 3 || Plaintiff fails to defend his complaint against a Rule 12 motion. Plaintiff offers no excuse 4 || for failing to amend his complaint or respond to Defendant’s motion to dismiss. The Court 5 || finds the third Ghazali factor also weighs in favor of dismissal as significant delay in the 6 resolution of this matter prejudices Defendant. Finally, with respect to whether less drastic 7 || measures have been considered; the Court will dismiss the action without prejudice. Thus, 8 ||the Court finds the factors weigh in favor of granting Defendant’s motion to dismiss. 9 CONCLUSION 10 For the reasons set forth above, IT IS HEREBY ORDERED: 11 1. Defendant’s unopposed motion to dismiss [Doc. No. 2] is GRANTED. 12 2. Plaintiff's complaint is DIMISSED without prejudice. 13 IT IS SO ORDERED. 14 15 16 || DATED: September 28, 2020 18 H n. John A. Houston Ynited States District Judge 19 20 21 22 23 24 25 26 27 28