Sandra Heller et al v. ALM Brand Bank AS

Filing 23

ORDER DENYING PLAINTIFFS EX PARTE APPLICATION FOR EXTENSION OF TIME 21 ANDGRANTING DEFENDANTS MOTION TO DISMISS 13 . The Clerk of Court shall close this case by Judge Otis D. Wright, II. ( MD JS-6. Case Terminated ) (lc)

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JS-6

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United States District Court
Central District of California

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SANDRA HELLER and STANLEY
HELLER,
Plaintiffs,

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v.

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Case № 2:15-cv-1635-ODW(PJWx)

EX PARTE APPLICATION FOR

ALM BANK A/S; and DOES 1–500,
Defendants.

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ORDER DENYING PLAINTIFFS’
EXTENSION OF TIME [21] AND
GRANTING DEFENDANT’S
MOTION TO DISMISS [13]

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Presently before the Court is Defendant ALM Bank A/S’s Motion to Dismiss

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and Plaintiffs Sandra and Stanley Heller’s Ex Parte Application for Extension of Time

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to Oppose the Motion to Dismiss. (ECF Nos. 13, 21.) Because Plaintiffs have not

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filed any opposition and for the reasons discussed in Defendant’s papers, the Court

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DENIES Plaintiffs’ Ex Parte Application and GRANTS Defendant’s Motion. 1

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Central District of California Local Rule 7-9 requires an opposing party to file

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an opposition to any motion at least twenty-one (21) days prior to the date designated

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for hearing the motion. C.D. Cal. L.R. 7-9. Additionally, Local Rule 7-12 provides

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that “[t]he failure to file any required paper, or the failure to file it within the deadline,

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may be deemed consent to the granting or denial of the motion.” C.D. Cal. L.R. 7-12.

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The hearing on Defendant’s Motion was originally set for July 27, 2015. The

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After carefully considering the papers filed in support of the Motion, the Court deems the matter
appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15.

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parties stipulated to continue the hearing date to September 14, 2015 and extend the

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deadline for opposition and reply briefs. (ECF No. 16.) The parties stipulated again

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to continue the hearing date to October 19, 2015, with Plaintiffs’ opposition due by

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September 2, 2015 and Defendant’s reply by October 5, 2015. (ECF No. 19.) On

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September 17, 2015, having not received any Opposition from Plaintiffs, the Court

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informed the parties that it may grant the Motion as unopposed if an opposition was

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not filed by September 24, 2015. (ECF No. 20.) Instead of filing an opposition,

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Plaintiffs have asked for yet another extension of time to oppose until October 19,

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2015.

Plaintiffs claim that on September 1, 2015, the parties agreed to a third

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extension to allow Plaintiff an additional three weeks to oppose Defendant’s Motion,

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but inexplicably the stipulation was never submitted to the Court.

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Defendant opposes the Application on the basis that Plaintiffs failed to comply with

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Local Rules 7-3 and 7-19.1.2 (ECF No. 22 at 2–3.)

(App. 3.)

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The Court is sympathetic to the personal hardship experienced by Plaintiffs’

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counsel, Mr. Kalcheim, these past few months, but unfortunately does not find that it

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justifies a fourth extension. After requesting the first, or even second, extension, Mr.

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Kalcheim should have sought outside help or recommended to his clients that they

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seek new counsel. Thus, the Court DENIES Plaintiffs’ Ex Parte Application for

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Extension, and finds that Plaintiffs have failed to oppose Defendants’ Motion.

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Plaintiffs’ failure to oppose may therefore be deemed consent to the granting of

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Defendant’s Motion. Enders v. Countrywide Home Loans, Inc., No. C 09-3213SBA,

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2009 WL 4018512, at *2 (N.D. Cal. Nov. 16, 2009) (“The Ninth Circuit has held that

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the failure to file an opposition to a motion to dismiss is grounds for granting the

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motion.” (quoting Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)).

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Furthermore, the substance of Defendant’s Motion appears meritorious. Under

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the traditional application of the forum non conveniens doctrine, a court “dismissing

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Defendant argues that Plaintiffs’ counsel only left a voicemail regarding the application and therefore has failed to
adequately meet and confer per L.R. 7-3 and failed to specify the reasonable and good faith efforts made to advise
opposing counsel of the Application per L.R. 7-19.1.

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an action on forum non conveniens grounds . . . must examine: (1) whether an

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adequate alternative forum exists; and (2) whether the balance of private and public

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interest factors favors dismissal.” Luek v. Sundstrand Corp., 236 F.3d 1337, 1142

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(9th Cir. 2001). However, where a valid forum selection clause is at issue, the

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traditional forum non conveniens analysis is abridged such that the burden is shifted to

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the party resisting the forum selection clause to demonstrate that “public-interest

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factors overwhelmingly disfavor a transfer.” Atlantic Marine Const. Co., Inc. v. U.S.

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Dist. Ct. for W. Dist. of Tex., 134 S. Ct. 568, 580–81.

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Plaintiffs’ Complaint seeks to re-open and revise the terms of two separate

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settlement agreements entered into between the parties. (Mot. 5–6.) The agreements

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contain forum selection provisions establishing Denmark as the exclusive forum in

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which to bring all disputes arising out of or relating to the settlement agreements.

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(Id.) The settlement agreements were negotiated by the parties and their counsel in

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Denmark; resolved disputes related to Danish loans issued by ALM in Denmark; and

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were secured by and addressed the transfer of Danish mortgage deeds and debt

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instruments related to real property, in Denmark, from ALM to another Danish Bank.

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(Id. at 1–5.) Furthermore, Plaintiffs are already pursuing a very similar action against

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ALM in Denmark, which is based on the same alleged facts set forth in the Complaint.

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(Mot. 11–12.) Thus, not only does Denmark have a greater interest than California

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over Plaintiff’s claims, but Plaintiffs will not be denied their “day in court” because

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their claims are being pursued in a parallel action. Accordingly, the Court GRANTS

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Defendant’s Motion to Dismiss. The Clerk of Court shall close this case.

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IT IS SO ORDERED.

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September 28, 2015

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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