Damoon J Navarchi v. Afni, Inc.

Filing 11

ORDER GRANTING MOTION TO STRIKE WITHOUT PREJUDICE 6 . The Court GRANTS Plaintiff thirty days leave to amend the complaint from the date of this Order. If Plaintiff does not file an amended complaint within thirty days, the case will be DISMISSED without prejudice by Judge Dean D. Pregerson. (lc). Modified on 12/9/2015 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DAMOON J. NAVARCHI,

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Plaintiff,
v.

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AFNI, INC.,

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Defendant.
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Case No. CV 15-08474 DDP (JEMx)
ORDER GRANTING MOTION TO STRIKE
WITHOUT PREJUDICE
[Dkt. No. 6]

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Presently before the Court is Defendant AFNI, Inc.’s Motion to

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Strike.

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filed a Notice of Non-Receipt of Opposition, requesting this Court

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grant the Motion on the basis of Plaintiff’s failure to oppose the

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motion.

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(Dkt. No. 6.)

The Motion was unopposed.

Defendant has

(Dkt. No. 9.)

Noticed motions require the other parties in the case to file

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either (a) a brief in opposition to the motion or (b) a written

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statement of nonopposition.

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Local Rule 7-12 states that “[t]he failure to file any required

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document . . . may be deemed consent to the granting or denial of

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the motion.”

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Documents).

C.D. Cal. R. 7-9 (Opposing Papers).

C.D. Cal. R. 7-12 (Failure to File Required

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Under Ninth Circuit precedent, a district court may dismiss a

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case for failing to follow local rules, such as failing to file an

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opposition.

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(per curiam).

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interest in expeditious resolution of litigation; (2) the court’s

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need to manage its docket; (3) the risk of prejudice to the

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defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic sanctions.”

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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) (affirming

See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)
The court must weigh five factors: “(1) the public’s

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a dismissal for lack of prosecution); see also Ghazali, 46 F.3d at

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53 (applying the factors from Henderson to a dismissal for failure

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to oppose the government’s motion to dismiss); Torabi v. Wash. Mut.

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Bank, No. 3:09-cv-2838-JAH, 2012 WL 259832 (S.D. Cal. Jan. 27,

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2012) (granting unopposed motions to strike and dismiss).

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Here, Defendant has filed a Motion to Strike the Complaint

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under Federal Rule of Civil Procedure 12(f).

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the Court must strike the complaint because Plaintiff’s state law

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causes of action are preempted by the federal Fair Credit Reporting

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Act (“FCRA”).

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leave can be given to the plaintiff to amend the complaint and

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state a claim under the FCRA instead.

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(Def. Mot. Strike at 2.)

Defendant argues that

Defendant concedes that

(Id. at 4.)

Considering factors one and two from Henderson, the public has

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a strong interest in expeditious resolution of litigation and the

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Court needs to be able to control its docket.

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require opposition or nonopposition papers to be filed in order to

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effectuate these goals.

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determining which issues in a case are disputed and what are the

The Local Rules

The parties’ papers assist the Court in

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legal and factual supporting arguments for each side.

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failure to file either required paper weighs in favor of dismissal.

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Thus,

The third factor is examined in relation “to the strength of

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the Plaintiff’s excuse for the default.”

Stewart v. City & Cnty.

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of San Francisco, No. C 08-5434 SBA, 2009 WL 1331101, at *2 (N.D.

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Cal. May 13, 2009) (citing Yourish v. Cal. Amplifier, 191 F.3d 983,

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991 (9th Cir. 1999)).

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failure to oppose Defendant’s motion, particularly after Defendant

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filed a notice of nonopposition warning Plaintiff that Defendant

Plaintiff has offered no excuse for the

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was seeking dismissal of the action for failure to respond.

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Dkt. No. 9.)

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(See

Thus, the third factor weighs in favor of dismissal.

Factor four weighs against dismissal as it favors disposition

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of cases on the merits.

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643 (9th Cir. 2002).

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See Pagtalunan v. Galaza, 291 F.3d 639,

Factor five asks the Court to consider alternatives to

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dismissal.

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prejudice and with leave to amend the complaint, the Court finds

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that this is not a drastic measure requiring an alternative means

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be used first to secure compliance.

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Here, because dismissal will be granted without

Therefore, the Court GRANTS Plaintiff thirty days leave to

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amend the complaint from the date of this Order.

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not file an amended complaint within thirty days, the case will be

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DISMISSED without prejudice.

If Plaintiff does

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IT IS SO ORDERED.

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Dated:December 9, 2015
DEAN D. PREGERSON
United States District Judge

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