Novalk, LLC v. Kinsale Insurance ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NOVALK, LLC, Case No.: 3:21-cv-01014-BEN-RBB 12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS 14 KINSALE INSURANCE CO., [ECF No. 6] 15 Defendant. 16 17 I. INTRODUCTION 18 Plaintiff Novalk, LLC (“Plaintiff”) brings this action against its insurer, Defendant 19 Kinsale Insurance Company, erroneously sued as Kinsale Insurance (“Defendant”) for 20 alleged breaches of Defendant’s agreement to insure Plaintiff. ECF No. 1.1 21 Before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint 22 Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (the “Motion”). ECF 23 No. 6. The motions were submitted on the papers without oral argument pursuant to 24 Civil Local Rule 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civil Procedure. ECF 25 No. 9. After considering the papers submitted, supporting documentation, and 26 27 1 Unless otherwise indicated, all page number references are to the ECF-generated 1 applicable law, the Court GRANTS the Motion. 2 II. BACKGROUND 3 A. Statement of Facts 4 Plaintiff alleges that it owns real estate located at 310 Rockwood Avenue, 5 Calexico, California, which Defendant insured. ECF No. 1-3 at 15, ¶ 1. After a fire at 6 the Plaintiff’s property, Plaintiffs notified Defendants pursuant to their policy. Plaintiff 7 alleges the amount Defendant offered to pay under the policy was far less than the 8 actual damages suffered. ECF No.1-3, 17 ¶¶ 8-19. Plaintiff’s suit followed thereafter. 9 B. Procedural History 10 On March 9, 2021, Plaintiff filed suit against Defendant in the Superior Court of 11 the State of California, County of Imperial (Novalk, LLC v. Kinsale Insurance; and 12 Does 1-100, Case No. ECU001799 (the “State Court Action”)). ECF No. 1-3 at 15. 13 The complaint in the State Court Action alleged causes of action for (1) breach of 14 contract; (2) negligent misrepresentation; (3) declaratory judgment; (4) specific 15 performance; (5) unjust enrichment; (6) bad faith; (7) fraud; (8) violation of the Unfair 16 Competition Law; (9) false advertising; and (10) injunctive relief. Id. 17 On May 27, 2021, Defendant removed this action to this Court. ECF No. 1. As a 18 result of the notice of removal, Defendant was required to file a response to the 19 Complaint by June 3, 2021. ECF No. 4 at 2. On June 1, 2021, Plaintiff and Defendant 20 filed a Joint Motion for Initial Extension of Time to Respond to Complaint. ECF No. 4. 21 This Court granted the joint motion, extending Defendant’s time to respond until June 22 17, 2021. Id. Defendant filed its Motion to Dismiss on June 17, 2021. ECF No. 6. 23 Plaintiff did not file an opposition to Defendant’s Motion. 24 III. DISCUSSION 25 “Actions or proceedings which have been pending for more than six months, 26 without any proceeding or discovery having been taken therein during such period, may, 27 after notice, be dismissed by the court for want of prosecution.” S.D. Cal. Civ. R. 1 41.1(a); see also States S. S. Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9th Cir. 2 1970) (affirming “[t]hat a court has power to dismiss an action for want of prosecution on 3 its own motion, both under Rule 41 (b), F.R. Civ. P., or under its local rule, or even in the 4 absence of such rules, is settled in this circuit”). In this case, Plaintiff originally filed suit 5 approximately six months ago, on March 9, 2021. See ECF No. 1-3 at 15. To date, the 6 record indicates no discovery has been taken or that plaintiff has taken any other action in 7 this case. Thus, grounds would normally exist for the Court to set an order to show cause 8 as to why this case should not be dismissed for failure to prosecute. However, the Court 9 finds it may dismiss without setting the order to show cause due to Plaintiff’s failure to 10 oppose Defendant’s Motion to Dismiss. 11 Local Rule 7.1(f)(3)(a) requires a party opposing a motion to either file a (1) 12 written opposition or (2) “written statement that the party does not oppose the motion.” 13 If an opposing party fails to file the papers in the manner required by the local rules, 14 “that failure may constitute a consent to the granting of a motion or other request for 15 ruling by the court.” S.D. Cal. Civ. R. 7.1(f)(3)(c); see also V. V. V. & Sons Edible Oils 16 Ltd. v. Meenakshi Overseas, LLC, 946 F.3d 542, 547 (9th Cir. 2019) (noting that claims 17 can be abandoned if their dismissal is unopposed); Jenkins v. Cty. of Riverside, 398 F.3d 18 1093, 1095 n. 4 (9th Cir. 2005) (“Jenkins abandoned her other two claims by not raising 19 them in opposition to the County’s motion for summary judgment.”). Thus, where the 20 non-moving party fails to address an argument raised by the moving party in the 21 opposition brief, the Court may consider any arguments unaddressed by the non-moving 22 party as waived. See, e.g., Franchise Tax Bd. of California v. Hyatt, ––– U.S. ––––, 139 23 S. Ct. 1485, 1491, n. 1 (2019) (deeming an argument waived where the defendant failed 24 to raise an issue in the opposition brief); see also Pac. Dawn LLC v. Pritzker, 831 F.3d 25 1166, 1178 n.7 (9th Cir. 2016) (noting that “the plaintiffs did not raise that argument to 26 the district court in their ... opposition to the defendants’ motion for summary judgment, 27 so the argument was waived.”). | Plaintiff's deadline to oppose Defendant’s Motion was July 1, 2021. This 2 || deadline has passed without response, request for extension, or any other 3 || communication from the Plaintiff. The Court construes Plaintiff's failure to oppose 4 || Defendant’s Motion as consent to granting the Motion. > CONCLUSION 6 For the above reasons, the Court GRANTS Defendant’s Motion to Dismiss the 7 || Complaint without prejudice. 8 IT IS SO ORDERED. 9 Dated: September 10, 2021 10 ON. ROGER T. BENITEZ 4 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28