Giroux v. Essex Property Trust, Inc.

Filing 41

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING DEFENDANT'S 33 MOTION TO DISMISS AND DENYING AS MOOT PLAINTIFFS 38 MOTION FOR LEAVE TO SUBMIT ADDITIONAL MATERIALS. (ndrS, COURT STAFF) (Filed on 9/27/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANGELE GIROUX, Case No. 16-cv-01722-HSG Plaintiff, 8 v. 9 10 ESSEX PROPERTY TRUST, INC., Defendant. Re: Dkt. No. 33, 38 11 United States District Court Northern District of California ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND DENYING AS MOOT PLAINTIFF’S MOTION FOR LEAVE TO SUBMIT ADDITIONAL MATERIALS 12 Pending before the Court are two motions: (1) Defendant Essex Property Trust, Inc.’s 13 14 motion to dismiss or, in the alternative, motion for judgment on the pleadings (“Motion to 15 Dismiss”) and (2) Plaintiff Angele Giroux’s motion for leave to submit additional materials 16 (“Motion for Leave”). Dkt. Nos. 33, 38. For the reasons articulated below, Defendant’s Motion 17 to Dismiss is GRANTED WITH LEAVE TO AMEND, and Plaintiff’s Motion for Leave is 18 DENIED AS MOOT. 19 I. BACKGROUND 20 On April 5, 2016, Plaintiff Angele Giroux filed this action under the Class Action 21 Fairness Act, 28 U.S.C. § 1332(d)(2), against her employer, Defendant Essex Property Trust. Dkt. 22 No. 1. The complaint alleges that in March 2016, Defendant experienced a cybersecurity data 23 breach, which resulted in the theft of the personal identifying information of over 1,500 of 24 Defendant’s current and former employees. Id. ¶¶ 1-2. Plaintiff asserts that the data breach 25 resulted from Defendant’s failure to implement reasonable security measures to detect and prevent 26 cyberattacks. Id. ¶ 4. 27 28 Plaintiff purports to assert four claims for relief on behalf of a class comprised of Defendant’s current and former employees: (1) negligence; (2) breach of implied contract; (3) 1 invasion of privacy; and (4) a request for a declaration that Defendant’s current cybersecurity 2 measures are inadequate. Plaintiff seeks both damages and injunctive/declaratory relief. 3 II. ANALYSIS On August 31, 2016, Defendant filed the pending Motion to Dismiss. Dkt. No. 33. On 4 5 September 14, 2016, Plaintiff’s deadline to oppose Defendant’s motion, Plaintiff filed a one-page 6 request to amend her complaint that did not respond to the substance of Defendant’s Motion to 7 Dismiss. Dkt. No. 35.1 Defendant indicated in its reply in support of its Motion to Dismiss that it 8 does not oppose Plaintiff’s request for leave to amend. Dkt. No. 40. Without ruling on the merits of Defendant’s Motion to Dismiss, the Court interprets 9 Plaintiff’s failure to oppose the motion as a concession that her original complaint should be 11 United States District Court Northern District of California 10 dismissed. See Marziano v. Cty. of Marin, No. C-10-2740 EMC, 2010 U.S. Dist. LEXIS 109595, 12 at *10 (N.D. Cal. Oct. 4, 2010) (failure to oppose motion to dismiss interpreted as a concession 13 that the claim at issue should be dismissed); see also GN Resound A/S v. Callpod, Inc., No. C 11- 14 04673 SBA, 2013 U.S. Dist. LEXIS 40402, at *13 (N.D. Cal. Mar. 21, 2013) (construing 15 plaintiff’s failure to oppose defendant’s argument as a concession of said argument). Because 16 Defendant does not oppose the filing of Plaintiff’s first amended complaint (“FAC”), the Court 17 dismisses Plaintiff’s complaint with leave to amend. Baker v. Holder, 475 F. App’x 156, 157 (9th 18 Cir. 2012) (“Dismissal without leave to amend is improper unless it is clear, upon de novo review, 19 that the complaint could not be saved by any amendment.”). On September 20, 2016, Plaintiff filed her Motion for Leave, seeking belatedly to submit 20 21 materials in opposition to Defendant’s Motion to Dismiss her original complaint. Dkt. No. 38. 22 Given that the Court has dismissed Plaintiff’s complaint with leave to amend, Plaintiff’s Motion 23 for Leave is DENIED AS MOOT. 24 // 25 // 26 // 27 1 28 Plaintiff attached her proposed first amended complaint to her September 14, 2016, response. Dkt. No. 35, Ex. A. 2 1 2 III. CONCLUSION For the aforementioned reasons, Defendant’s Motion to Dismiss is GRANTED WITH 3 LEAVE TO AMEND, and Plaintiff’s Motion for Leave is DENIED AS MOOT. Plaintiff may file 4 her first amended complaint within 7 days of this Order. 5 6 7 8 9 IT IS SO ORDERED. Dated: 9/27/2016 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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