Salinas v. IA Lodging San Diego L.L.C. ( 2021 )


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  • 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GILBERT SALINAS, Case No.: 21-CV-495 JLS (BLM) 12 Plaintiff, ORDER: (1) VACATING HEARING; 13 v. (2) GRANTING DEFENDANT’S UNOPPOSED MOTION TO DISMISS 14 IA LODGING SAN DIEGO, L.L.C., PLAINTIFF’S COMPLAINT AND a Delaware limited liability company; 15 SUPPORTING REQUEST FOR and DOES 1 –10, JUDICIAL NOTICE; AND 16 Defendants. (3) DISMISSING PLAINTIFF’S 17 COMPLAINT WITHOUT PREJUDICE 18 19 (ECF No. 5) 20 21 Presently before the Court is Defendant IA Lodging San Diego, L.L.C.’s 22 (“Defendant”) Motion to Dismiss Plaintiff’s Complaint (“Mot.,” ECF No. 5), as well as 23 Defendant’s Request for Judicial Notice in support thereof (“RJN,” ECF No. 5-3). No 24 opposition has been filed. The Court finds this matter appropriate for decision without oral 25 argument and therefore VACATES the hearing and takes the matter under submission 26 pursuant to Civil Local Rule 7.1(d)(1). 27 The Ninth Circuit has held that, pursuant to a local rule, a district court summarily 28 may grant an unopposed motion to dismiss. See generally Ghazali v. Moran, 46 F.3d 52, 1 53 (9th Cir. 1995) (affirming dismissal for failure to file timely opposition papers where 2 plaintiff had notice of the motion and ample time to respond). Here, a local rule allows the 3 Court to grant the Motion. Civil Local Rule 7.1(f)(3)(c) provides: “If an opposing party 4 fails to file [an opposition] in the manner required by Civil Local Rule 7.1.e.2, that failure 5 may constitute a consent to the granting of a motion or other request for ruling by the 6 court.” Unless the Court orders otherwise, pursuant to Civil Local Rule 7.1(e)(2), an 7 opposition must be filed 14 days prior to the noticed hearing. The hearing for the present 8 Motion was set for April 29, 2021, at 1:30 p.m.; thus, any opposition was due on April 15, 9 2021. 10 In determining whether to dismiss an action, the court is required to weigh several 11 factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 12 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 13 favoring disposition of cases on their merits; and (5) the availability of less drastic 14 sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 15 (9th Cir. 1986)). The Ninth Circuit has recognized that the first and fourth factors cut in 16 opposite directions. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (first 17 factor always weighs in favor of dismissal); Hernandez v. City of El Monte, 138 F.3d 393, 18 401 (9th Cir. 1998) (fourth factor always weighs against dismissal). Therefore, the Court 19 considers the substance of factors two, three, and five. 20 Here, the second factor weighs in favor of dismissal. The Court must manage its 21 docket to ensure the efficient provision of justice. Plaintiff Gilbert Salinas had notice of 22 the Motion and RJN yet failed to file a timely opposition. Plaintiff has not provided any 23 excuse for his failure timely to file an opposition to the present Motion or the supporting 24 RJN. The Court cannot continue waiting for Plaintiff to take action, and a case cannot 25 move forward when the plaintiff fails to defend its case. Further, Plaintiff is represented 26 by an attorney and nonetheless has failed to comply with the rules of procedure. See Holt 27 v. I.R.S., 231 Fed. App’x. 557, 558 (9th Cir. 2007) (holding court did not abuse its 28 discretion in dismissing action for failure to file an opposition and rejecting plaintiff’s 1 contention that the district court should have warned her of the consequences of failing to 2 file an opposition). 3 As to the third factor, the Court finds no risk of prejudice to Defendant if it grants 4 the present Motion. In fact, Defendant has requested the dismissal. Thus, this factor also 5 weighs in favor of dismissal. As to the fifth factor, where the plaintiff does not oppose 6 dismissal, it is “unnecessary for the Court to consider less drastic alternatives.” Rodriguez 7 v. Nationstar Mortg. LLC, No. 2:16–CV–5962–ODW(SK), 2016 WL 4581402, at *1 (C.D. 8 Cal. Sept. 1, 2016). Thus, the Ghazali factors weigh in favor of granting Defendant’s 9 unopposed Motion. Moreover, courts within this District have granted unopposed requests 10 for judicial notice pursuant to Civil Local Rule 7.1(f)(3)(c). See, e.g., Haddad v. Bank of 11 Am., N.A., No. 12CV3010-WQH-JMA, 2014 WL 67646, at *1 n.1 (S.D. Cal. Jan. 8, 2014); 12 Tavares v. Nationstar Mortg. LLC, No. 14CV216-WQH-NLS, 2014 WL 3502851, at *1 13 n.1 (S.D. Cal. July 14, 2014). 14 In light of the foregoing, the Court GRANTS the Motion and RJN (ECF No. 5). 15 The Court DISMISSES WITHOUT PREJUDICE Plaintiff’s first claim for violation of 16 the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., and DECLINES 17 to exercise supplemental jurisdiction over Plaintiff’s second claim for violation of the 18 Unruh Civil Rights Act, Cal. Civ. Code §§ 51–53; accordingly the Court DISMISSES the 19 Complaint WITHOUT PREJUDICE. 20 Although Defendant requests that the Court deny leave to amend, the Court finds 21 dismissal with prejudice unduly harsh at this early stage in the proceedings. Thus, Plaintiff 22 MAY FILE an amended complaint curing the deficiencies identified in Defendant’s 23 Motion within fourteen (14) days of the date on which this Order is electronically docketed. 24 Should Plaintiff fail to file an amended pleading in accordance with this Order, the Court 25 will enter a final order dismissing this civil action based on Plaintiff’s failure to prosecute 26 in compliance with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 27 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix 28 / / / 1 || his complaint, a district court may convert the dismissal of the complaint into dismissal of 2 || the entire action.”’). 3 IT IS SO ORDERED. 4 Dated: April 22, 2021 jae L. Lo memeaite- 5 on. Janis L. Sammartino United States District Judge 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Document Info

Docket Number: 3:21-cv-00495-LL-BLM

Filed Date: 4/22/2021

Precedential Status: Precedential

Modified Date: 6/20/2024