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)

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