Huntington et al v. National City Mortgage et al

Filing 33

ORDER Granting (Doc. 31 ) Defendant's Joint Motion to Dismiss With Prejudice Without Leave to Amend. Signed by Judge Thomas J. Whelan on 5/6/2010. (cap)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 20 THOMAS B. HUNTINGTON III, et al. v. Plaintiffs, CASE NO. 09-CV- 1155 W (WMc) ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH PREJUDICE (DOC. 31) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

NATIONAL CITY MORTGAGE, et al., Defendants. Pending before the Court is Defendant Wells Fargo Bank, N.A.'s motion to dismiss Civil Local Rule 7.1(f.3.c) provides that "[i]f an opposing party fails to file papers in

19 the First Amended Complaint ("FAC"). (Doc. 31.) Plaintiffs have failed to oppose.1 21 the manner required by Local Rule 7.1(e)(2), that failure may constitute a consent to the 22 granting of that motion or other ruling by the court." The Ninth Circuit has held that a 23 district court may properly grant a motion to dismiss for failure to respond. See generally 24 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming dismissal for 25 26
This is not Plaintiffs' first failure to oppose a motion to dismiss. Rather than respond to Defendant GMAC Mortgage's motion to dismiss, Plaintiffs filed the FAC, thereby mooting the 27 motion. Plaintiffs and GMAC then filed a joint motion to dismiss GMAC. (See Jt. Mt. [Doc. 21].) 28 In response to Defendant National City Mortgage's motion to dismiss the FAC. Plaintiffs filed a voluntary dismissal of National City. (See Not. of Dism. [Doc. 27].)
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1 failure to file timely opposition papers where plaintiff had notice of the motion and ample 2 time to respond). 3 Here, based on the hearing date, Plaintiffs' opposition was due on or before April 4 19, 2010. Plaintiffs, however, did not file an opposition and have not requested additional 5 time to do so. Moreover, there is no evidence before the Court that Defendant's moving 6 papers failed to reach the mailing address designated in Defendant's Proof of Service or 7 that Plaintiffs were not aware of the pending motion. Relying on Civil Local Rule 8 7.1(f.3.c), the Court deems Plaintiffs' failure to oppose Defendant's motion as consent to 9 the merits. 10 Furthermore, because Plaintiffs have repeatedly failed to oppose the motions to 11 dismiss, two of which specifically challenged the FAC, the Court finds leave to amend is 12 not warranted. Accordingly, Defendant Wells Fargo's motion to dismiss (Doc. 31) is 13 GRANTED WITHOUT LEAVE TO AMEND, and JUDGMENT shall be entered 14 in favor of Defendants.2 15 16 17 DATED: May 6, 2010 18 19 20 21 22 23 24 25 26 27 28
Although Cal-Western Reconveyance Corporation is identified as a defendant, none of the causes of action were asserted against it.
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IT IS SO ORDERED.

Hon. Thomas J. Whelan United States District Judge