Venice Baking Company v. Sophast Sales and Marketing LLC et al

Filing 17

ORDER DENYING PLAINTIFFS EX PARTE APPLICATION FOR A CONTINUANCE TO FILE OPPOSITION TO DEFENDANTS MOTION TO DISMISS 12 by Judge Otis D. Wright, II . (lc). Modified on 9/22/2016 (lc).

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United States District Court
Central District of California

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VENICE BAKING COMPANY,
Plaintiff,

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Case No. 2:16-cv-6136-ODW(KS)
ORDER DENYING PLAINTIFF’S
EX PARTE APPLICATION [12]

v.
SOPHAST SALES AND MARKETING
LLC; and DOES 1–10, inclusive,

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Defendants.

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I.

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INTRODUCTION

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Before the Court is Plaintiff Venice Baking Company’s Ex Parte Application

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for a Continuance to file opposition to Defendant Sophast Sales and Marketing LLC’s

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Motion to Dismiss.

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Defendants’ Motion to Dismiss for lack of personal jurisdiction prior to the filing of

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the pending application, the Court DENIES Plaintiff’s Ex Parte Application. (ECF

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No. 11.)

(ECF No. 12.)

Because the Court has already granted

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II.

FACTUAL BACKGROUND

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On May 4, 2016, Plaintiff filed this action in the Superior Court of Los Angeles,

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seeking declaratory relief. (Compl., Not. of Removal, Ex. A, ECF No. 1.) Plaintiff’s

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claims arose out of a contract dispute between the two parties. (Id.) Defendant

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removed the action to this Court on August 16, 2016. (ECF No. 1.) Defendant then

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filed a motion to dismiss for lack of personal jurisdiction on August 30, 2016, which

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was set for hearing on October 3, 2016. (ECF No. 9.)

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Plaintiff’s opposition to the motion was due on September 12, 2016.

No

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opposition was ever filed. On September 19, 2016, the Court granted Defendant’s

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Motion to Dismiss as unopposed. (ECF No. 11.) Subsequently, Plaintiff filed the

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pending Ex Parte Application. (ECF. No. 12.)

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III.

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DISCUSSION

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Local Civil Rule 7-9 requires a party opposing a motion to file an opposition or

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statement of non-opposition at least twenty-one days before the noticed hearing date.

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District courts have broad discretion to enact and apply local rules, including

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dismissal of a case for failure to comply with the local rules. Ghazali v. Moran, 46

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F.3d 52, 53 (9th Cir. 1995) (affirming grant of an unopposed motion to dismiss under

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local rule by deeming a pro se litigant’s failure to oppose as consent to granting the

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motion); United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979).

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Plaintiff did not file a timely opposition or statement of non-opposition by the

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September 12, 2016 deadline. For this reason, the Court granted Defendant’s Motion

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to Dismiss as unopposed on September 19, 2016. (ECF No. 11)

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Plaintiff’s Ex Parte Application indicates that it was aware of the need to timely

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file an opposition to Defendants’ Motion to Dismiss before the September 12, 2016

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deadline. (ECF No. 12, Ex. H, 50.) Correspondence between the parties indicates that

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Plaintiff believed settlement was imminent, and as a result, chose not to file

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opposition to Defendant’s Motion to Dismiss. (Id.) However, that belief does not

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excuse Plaintiff from his obligation to file a timely opposition or in the alternative,

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seek a continuance, when a settlement failed to materialize before the September 12,

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2016 deadline.

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As the Court previously issued a final order in this case, it is no longer

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procedurally proper to consider Plaintiff’s Ex Parte Application. Plaintiff must now

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seek relief from the final order dismissing its case. See Medina v. Wells Fargo Bank,

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N.A., No. 216CV00532ODWMRWX, 2016 WL 2944295, at *1 (C.D. Cal. May 20,

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2016) (indicating that where a plaintiff fails to timely oppose a motion to dismiss and

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the court grants the motion as unopposed, a plaintiff properly seeks relief pursuant to

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Federal Rule of Civil Procedure 60(b)); see also Dobson v. State of California, No.

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215CV9648ODWJPR, 2016 WL 4136507, at *2 (C.D. Cal. Aug. 1, 2016) (same).1

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Accordingly, Plaintiff’s Ex Parte Application is DENIED as procedurally improper.

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IT IS SO ORDERED.

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September 21, 2016

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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The Court notes that while Plaintiff may also file a motion to reconsider, a motion to reconsider a
final order will likely be construed as a motion for relief pursuant to Federal Rule of 60(b).
Zamarron v. Nevada, No. 3:10-CV-00094, 2010 WL 5186086, at *1 (D. Nev. Dec. 15, 2010) (citing
School Dist. No. 1J Multnomah County v. AC & S, Inc., 5 F.3d 1255, 1262 (9th Cir.1993)).

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