Wallace v. Busch Entertainment Corp et al

Filing 55

ORDER Granting 52 Defendants' Motion to Substitute Party as defendant. The Clerk of the Court shall substitute SWPE LLC as defendant in place of BEC. Signed by Judge M. James Lorenz on 10/25/11. (All non-registered users served via U.S. Mail Service)(ecs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 JOHN B. WALLACE,
Plaintiff,

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13 v.
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BUSCH ENTERTAINMENT
15 CORPORATION, et al.,

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Civil No. 09-cv-2785-L(RBB)
ORDER GRANTING
DEFENDANTS’ MOTION TO
SUBSTITUTE PARTY AS
DEFENDANT [DOC. 52]

Defendants.

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On July 19, 2011, Defendant Seaworld Parks & Entertainment LLC, formerly known as

19 Busch Entertainment Corporation, (“SWPE LLC”) filed a motion to substitute SWPE LLC as
20 defendant in this action in place of the named defendant Busch Entertainment Corporation
21 (“BEC”). Defendant argues that SWPE LLC is the successor entity to BEC and that the
22 substitution is appropriate under Federal Rule of Civil Procedure 25(c). To date, Plaintiff has
23 not opposed.
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Civil Local Rule 7.1(f.3.c) provides that “[i]f an opposing party fails to file papers in the

25 manner required by Local Rule 7.1.e.2, that failure may constitute a consent to the granting of
26 that motion or other ruling by the court.” Furthermore, the Ninth Circuit has held that a district
27 court may even properly grant a motion to dismiss for failure to respond. See generally Ghazali
28 v. Moran, 46 F.3d 52, 52 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to file
09cv2785

1 timely opposition papers where plaintiff had notice of the motion and ample time to respond).
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In this case, based on the October 11, 2011 hearing date, Plaintiff’s opposition was due by

3 September 27, 2011. However, Plaintiff did not file an opposition by this date and has not
4 requested additional time to do so. Moreover, there is no evidence before the Court that
5 Defendant’s moving papers failed to reach the mailing address designated in Defendant’s Proof
6 of Service or that Plaintiff was not aware of the pending motion. Relying on Civil Local Rule
7 7.1(f.3.c), the Court deems Plaintiff’s failure to oppose Defendant’s motion as consent to
8 granting it.
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In light of the foregoing, the Court GRANTS Defendant’s motion to substitute SWPE

10 LLC as a named defendant in this case. (Doc. 52.) The Clerk of the Court shall substitute
11 SWPE LLC as defendant in place of BEC. Furthermore, all prior submissions of Defendant in
12 this matter shall be given the same force and effect as if filed or submitted by SWPE LLC.
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IT IS SO ORDERED.

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16 DATED: October 25, 2011
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M. James Lorenz
United States District Court Judge

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COPY TO:
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HON. RUBEN B. BROOKS
20 UNITED STATES MAGISTRATE JUDGE
21 ALL PARTIES/COUNSEL
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09cv2785

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