Agpaoa et al v. Secured Bankers Mortgage Company et al

Filing 6

ORDER Granting (Doc. 4 ) Defendant's Motion to Dismiss with Leave to Amend. Plaintiffs' amended complaint, which cures the deficiencies identified in 4 Defendant's motion, must be filed on or before December 2, 2009. Signed by Judge Thomas J. Whelan on 11/2/09. (All non-registered users served via U.S. Mail Service)(cap) (av1).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 ALFRED D. AGPAOA, et al., Plaintiffs, v. SECURED BANKERS MORTGAGE COMPANY, et al., Defendants. Pending before the Court is a motion to dismiss filed by Defendants Bank of CASE NO. 09-CV- 1387 W (POR) ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (DOC. 4) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

18 America Home Loans, and Reconstruct Company, N.A. (Doc. 4). Plaintiffs have not 19 opposed. 20 Civil Local Rule 7.1(f.3.c) provides that "[i]f an opposing party fails to file papers 21 in the manner required by Local Rule 7.1(e)(2), that failure may constitute a consent to 22 the granting of that motion or other ruling by the court." The Ninth Circuit has held 23 that a district court may properly grant a motion to dismiss for failure to respond. See 24 generally Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming 25 dismissal for failure to file timely opposition papers where plaintiff had notice of the 26 motion and ample time to respond). 27 Here, based on the hearing date, Plaintiffs' opposition was due on or before 28 September 4, 2009. Plaintiffs, however, did not file an opposition and have not
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1 requested additional time to do so. Moreover, there is no evidence before the Court that 2 Defendants' moving papers failed to reach the mailing address designated in Defendants' 3 Proof of Service or that Plaintiffs were not aware of the pending motion. Relying on 4 Civil Local Rule 7.1(f.3.c), the Court deems Plaintiffs' failure to oppose Defendants' 5 motion as consent to its merits. 6 In light of the foregoing, Defendants' motion to dismiss (Doc. 4) is GRANTED Plaintiffs' amended complaint, which cures the 7 WITH LEAVE TO AMEND. 9 2009. 10 12 13 14 DATED: November 2, 2009 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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8 deficiencies identified in Defendants' motion, must be filed on or before December 2, Plaintiffs are further cautioned that failure to comply with this order or to respond IT IS SO ORDERED.

11 to any future motions to dismiss may result in dismissal with prejudice.

Hon. Thomas J. Whelan United States District Judge