Kasain v. Unger ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEFAN KASAIN, Case No. 21-cv-01511-BAS-AGS 12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. UNOPPOSED MOTION TO DISMISS (ECF No. 4) 14 JOSEPH A. UNGER, et al., 15 Defendants. 16 17 18 On August 26, 2021, Plaintiff Stefan Kasain brought this suit against two Internal 19 Revenue Services employees, Joseph Unger and Loretta Martinez. (Compl., ECF No. 1.) 20 Kasain alleges that he suffered from a serious brain injury requiring surgery and incurred 21 tax debt when he was incapacitated or recovering from his physical condition. Kasain 22 argues that Unger and Martinez violated the Americans with Disabilities Act (“ADA”), the 23 Federal Tort Claims Act (“FTCA”), and his due process rights, by, among other things, 24 targeting him in their attempts to collect his outstanding tax liabilities. (Id.) 25 On November 5, 2021, Defendants filed a motion to dismiss the Complaint under 26 Rules 12(b)(1), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure, with a 27 noticed hearing date of December 6, 2021. (ECF No. 4.) Plaintiff’s deadline to file an 28 1 || opposition in response to Defendants’ motion to dismiss was November 22, 2021. Civ. 2 ||L.R. 7.1(e).! No opposition was filed. 3 Under this district’s local rules, the lack of an opposition to a motion “may constitute 4 ||a consent to the granting of a motion or other request for ruling by the court.” See Civ. 5 ||L.R. 7.1((3)(c).. The Ninth Circuit has held that a district court may properly grant a 6 ||motion to dismiss for the plaintiff's failure to file timely opposition papers where the 7 || plaintiff had notice of the motion and ample time to respond. See Ghazali v. Moran, 46 8 || F.3d 52, 52 (9th Cir. 1995) (per curiam); see also Carrea v. Cate, No. 08CV2295 WQH 9 || BLM, 2009 WL 2382533, at *3 n.3 (S.D. Cal. July 30, 2009). 10 Here, the record does not indicate that Plaintiff lacks notice of Defendants’ motion 11 dismiss. More than five weeks have passed since the deadline for Plaintiff to respond to 12 ||the motion to dismiss. Yet, Plaintiff has not responded to the motion. Because Plaintiff 13 made aware of the motion and had ample time to respond to it, the Court deems 14 Plaintiff's failure to oppose Defendant’s motion as consent to granting it. Civ. L.R. 15 ||7.1((3)(c). In addition, the Court’s own review of the record supports dismissing 16 || Plaintiff's Complaint. 17 Accordingly, the Court GRANTS Defendants’ motion to dismiss as unopposed. 18 || (ECF No. 4.) The Court DISMISSES WITHOUT PREJUDICE Plaintiffs’ Complaint. 19 || The Clerk is directed to close the case. 20 21 IT IS SO ORDERED. 22 /\ yy 23 || DATED: January 3, 2022 (uf nu uA (Hophta. 6 24 United States District Judge 25 26 27 || ——_—— 38 ' Civil Local Rule 7.1(e)(2) provides that a party opposing a motion must file either an opposition or a statement of non-opposition no later than fourteen calendar days prior to the noticed hearing date.