Bojorquez Valdez v. Maya Publishing Group LLC

Filing 59

ORDER granting 39 Motion to Strike Affirmative Defenses. Consequently, all of Defendants affirmative defenses in its answer are stricken. Signed by Judge M. James Lorenz on 10/11/2011. (mtb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 EVA MARIA BOJORQUEZ VALDEZ, et
al.,
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Plaintiffs,
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v.
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MAYA PUBLISHING GROUP LLC,
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Defendant.
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Civil No. 10-cv-733-L(BGS)
ORDER GRANTING MOTION TO
STRIKE AFFIRMATIVE DEFENSES
[DOC. 39]

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On April 8, 2010, Defendant removed this defamation action to this Court. On June 30,

19 2011, Plaintiffs filed a motion to strike Defendant’s affirmative defenses. (Doc. 39.) On
20 September 16, 2011, Defendant filed an untimely opposition. (Doc. 43.) In addition to being
21 untimely, the opposition failed to comply with the Civil Local Rules and thus was stricken from
22 the record. (Doc. 46.) On September 19, 2011, Defendant resubmitted the opposition (Doc. 48)
23 with an ex parte application for an extension of time to file the opposition late (Doc. 49). But
24 the Court denied the ex parte application and struck the resubmitted opposition from the record.
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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

27 manner required by Local Rule 7.1.e.2, that failure may constitute a consent to the granting of
28 that motion or other ruling by the court.” The Ninth Circuit has held that a district court may
10cv733

1 properly grant a motion to dismiss for failure to respond. See generally Ghazali v. Moran, 46
2 F.3d 52, 52 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to file timely opposition
3 papers where plaintiff had notice of the motion and ample time to respond).
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Defendant was required to file its opposition by September 12, 2011. However, it filed

5 the opposition late on September 16, 2011, and again on September 19, 2011. Defendant did not
6 request additional time to file its opposition prior to the due date. And the Court denied
7 Defendant’s request to file the opposition late after the due date had passed. Moreover, there is
8 no evidence before the Court that Plaintiffs’ moving papers failed to reach the mailing address
9 designated in Plaintiff’s Proof of Service. Accordingly, the motion currently pending before the
10 Court is unopposed, and relying on Civil Local Rule 7.1(f.3.c), the Court deems Defendant’s
11 failure to adequately oppose Plaintiffs’ motion as consent to granting it.
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In light of the foregoing, the Court GRANTS Plaintiffs’ motion to strike Defendant’s

13 affirmative defenses. (Doc. 39.) Consequently, all of Defendant’s affirmative defenses in its
14 answer are stricken.
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IT IS SO ORDERED.

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17 DATED: October 11, 2011
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M. James Lorenz
United States District Court Judge

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COPY TO:
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HON. BERNARD G. SKOMAL
21 UNITED STATES MAGISTRATE JUDGE
22 ALL PARTIES/COUNSEL
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10cv733

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