1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 DIPITO LLC, a Montana Limited Case No.: 3:21-cv-01205-H-JLB 11 Liability Company d/b/a San Diego Motorwerks; CHIDIEBERE AMADI, an ORDER GRANTING DEFENDANT 12 individual, CENTER AUTOMOTIVE, INC.’S 13 MOTION TO DISMISS FOR Plaintiffs, INSUFFICIENT SERVICE OF 14 v. PROCESS 15 JERRY SIDERMAN, an individual; [Doc No. 68] 16 BMW FINANCIAL SERVICES NA, LLC; CENTER AUTOMOTIVE, LLC, 17 d/b/a Center BMW; and DOES 1 through 18 200, inclusive, 19 Defendants. 20 21 22 On September 9, 2022, Defendant Center Automotive, Inc. (“Center”) filed a motion 23 to dismiss for insufficient service of process. (Doc. No. 68.) On October 6, 2022, the 24 Court issued an order regarding the motion. (Doc. No. 71.) In the Order, the Court stated 25 that it was inclined to grant the motion1 and noted that Plaintiffs Dipito LLC (“Dipito”) 26 27 1 The Court stated it was inclined to grant the motion based on Mr. Farguson’s 28 1 and Chidiebere Amadi (“Amadi”) had failed to file an opposition to the motion to dismiss 2 within the time limits prescribed under Civil Local Rule 7.1(e)(2). (Id.) The Court granted 3 Plaintiffs an additional two weeks to file an opposition, or, if they did not wish to oppose 4 the motion, granted them thirty days to correct service of process on Center. (Id.) Plaintiffs 5 neither filed an opposition nor corrected service of process within the time periods 6 proscribed by the order. 7 On November 14, 2022, the Court held a hearing on the motion. Michael Alfred 8 appeared for Plaintiffs Dipito and Amadi, Katherine Yang appeared for Defendant Center, 9 and Rebecca Caley appeared for Defendant BMW. At the hearing, Plaintiffs’ counsel 10 acknowledged that they had not filed an opposition and had not yet corrected service of 11 process on Center. 12 Based on the foregoing, including the declaration provided by Mr. Farguson, the 13 Court grants Center’s motion to dismiss for insufficient service of process under Federal 14 Rule of Civil Procedure 12(b)(5). See Gonzalez v. DDR Partners, Inc., No. C-08-03814- 15 JW, 2009 WL 10695747, at *2 (N.D. Cal. Jan. 14, 2009) (granting a motion to quash 16 service for insufficient service of process based on two declarations submitted by the 17 defendant and plaintiffs’ non-opposition). In its discretion, the Court quashes service of 18 process of Center (Doc. No. 13-1). See S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 19 1293 (9th Cir. 2006) (holding that a district court “has discretion to dismiss an action or to 20 quash service” where service of process is insufficient) (citation omitted); see also 21 Schagene v. Grumman, No. 11-CV-1642-AJB, 2012 WL 216531, at *2 (S.D. Cal. Jan. 24, 22 23 provided a declaration stating that it sold its dealership at 5201 Van Nuys Blvd., Sherman 24 Oaks, CA 91401 on May 27, 2021 and it no longer owned or operated the dealership 25 following the sale. (Doc. No. 68-2.) The declaration also provided that Mr. Farguson, the registered agent for service of process for Center Automotive, Inc., was not present at the 26 dealership on August 8, 2021 when a “John Doe” accepted service. (Id.) Additionally, 27 Civil Local Rule 7.1.f.3.c. states “[i]f an opposing party fails to file [an opposition] in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the 28 1 2012) ‘However, if it appears that effective service can be made and there has been no 2 prejudice to the defendant, a court will quash service rather than dismiss the action.’’) 3 ||(citation omitted). Plaintiff Dipito” must perfect service of process on Center no later than 4 || thirty days (30) from the date this Order is filed. 5 IT IS SO ORDERED. 6 || DATED: November 16, 2022 7 MAALAYV\ Le FELL ff MARILYNU. HUFF, Seniot/i}trict Judge 8 UNITED STATES DISTRICT COURT 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 || 27 Plaintiffs’ counsel stated at the hearing that Plaintiff Chidiebere Amadi no longer 28 wished to proceed with his claims against Defendants. In a separate order, the Court dismissed Plaintiff Chidiebere Amadi’s claims.