Ziman v. Liberty Mutual Fire, et al

Filing 47

ORDER Granting (Doc. 46 ) Defendant's Unopposed Motion to Dismiss With Prejudice. Signed by Judge Thomas J. Whelan on 7/12/2010. (All non-registered users served via U.S. Mail Service)(srm)

Ziman v. Liberty Mutual Fire, et al

Doc. 47

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 vs. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant. Pending before the Court is Defendant Liberty Mutual Fire Insurance Company's UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA KIM ZIMAN, individually and on behalf of all others similarly situated, and the general public, Plaintiffs, CASE NO. 05-CV-2344 W (AJB) ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION TO DISMISS WITH PREJUDICE (DOC. 46)

19 ("Liberty Mutual") motion to dismiss. Plaintiff Kim Ziman ("Plaintiff") has not opposed. 20 The Court decides the matter on the papers submitted and without oral 21 argument. See S.D. Cal. Civ. R. 7.1(d.1). For the reasons stated below, the Court 22 GRANTS the motion to dismiss (Doc. 46) with prejudice. 23 24 I. 25 BACKGROUND On April 1, 2010, this Court dismissed Plaintiff's case with leave to amend. On

26 April 20, 2010, Plaintiff filed his Second Amended Complaint ("SAC"). (Doc. 43.) On 27 May 13, 2010, Liberty Mutual filed a motion to dismiss. 28 The motion to dismiss was set for hearing on July 12, 2010. As such, any
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1 opposition to that motion was due June 25, 2010. See S.D. Cal. Civ. R. 7.1(e.2) To 2 date, Plaintiff has not filed an opposition. 3 4 II. 5 STANDARD The Court must dismiss a cause of action that fails to state a claim upon which

6 relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 7 12(b)(6) tests the complaint's sufficiency. North Star Int'l. v. Arizona Corp. Comm'n, 8 720 F.2d 578, 581 (9th Cir. 1983). All material allegations in the complaint, "even if 9 doubtful in fact," are assumed to be true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 10 555(2007). The court must assume the truth of all factual allegations and must 11 "construe them in the light most favorable to [the non-moving party]." Gompper v. 12 VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); Walleri v. Fed. Home Loan Bank of 13 Seattle, 83 F.3d 1575, 1580 (9th Cir. 1996). 14 As the Supreme Court explained, "[w]hile a complaint attacked by a Rule 15 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's 16 obligation to provide the `grounds' of his `entitlement to relief' requires more than labels 17 and conclusions, and a formulaic recitation of the elements of a cause of action will not 18 do." Twombly, 550 U.S. at 555 (citations omitted). Instead, the allegations in the 19 complaint "must be enough to raise a right to relief above the speculative level." Id. A 20 complaint may be dismissed as a matter of law either for lack of a cognizable legal theory 21 or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, 22 Inc., 749 F.2d 530, 534 (9th Cir. 1984). 23 24 III. 25 D ISCUSSION The Court grants Liberty Mutual's motion based upon Plaintiffs' failure to file an

26 opposition as required by Civil Local Rule 7.1. The Ninth Circuit has held that 27 pursuant to a local rule a district court may properly grant a motion to dismiss for failure 28 to respond. See generally Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.1995) (affirming
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1 dismissal for failure to file timely opposition papers where plaintiff had notice of the 2 motion and ample time to respond); accord Martinez v. Stanford, 323 F.3d 1178, 1183 3 (9th Cir. 2003)(affirming Ghazali's applicability to Rule 12(b) motions). 4 Moreover, Civil Local Rule 7.1(f.3.c) expressly provides that "[i]f an opposing 5 party fails to file papers in the manner required by Local Rule 7.1(e)(2), that failure may 6 constitute a consent to the granting of that motion or other ruling by the court." Here, 7 Plaintiff has failed to oppose or to request an extension of time in which to do so. 8 Relying on Civil Local Rule 7.1(f.3.c), the Court interprets Plaintiff's failure to oppose 9 Liberty Mutual's motion to dismiss as a consent to its merits. 10 Additionally, the Court notes that Plaintiff has already amended his complaint 11 twice. (See Docs. 13, 43.) By failing to respond, Plaintiff has also failed to argue for 12 leave to file a Third Amended Complaint. 13 15 16 17 18 DATED: July 12, 2010 19 20 21 22 23 24 25 26 27 28
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Accordingly, the Court GRANTS Liberty Mutual's motions to dismiss WITH

14 PREJUDICE. This Order closes this case in its entirety. IT IS SO ORDERED.

Hon. Thomas J. Whelan United States District Judge