Diaz et al v. JP Morgan Chase Bank National et al

Filing 12

ORDER granting 5 JPMorgan Chase Bank, N.A's Motion to Dismiss. The unserved named defendants are dismissed. Signed by Judge M. James Lorenz on 4/16/2012. (All non-registered users served via U.S. Mail Service)(mtb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 JOSE DIAZ and TERESA DIAZ,
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Plaintiffs,

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14 JP MORGAN CHASE BANK
NATIONAL, et al.,
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Defendants.
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Civil No. 11cv2530 L (BLM)
ORDER GRANTING JPMORGAN
CHASE BANK, N.A.’S MOTION TO
DISMISS [doc. #5]

On March 5, 2012, defendant JPMorgan Chase Bank N.A. filed a motion to dismiss the

18 complaint for failure to state a claim upon which relief can be granted under Federal Rule of
19 Civil Procedure 12(b)(1). See CIV. L.R. 7.1.e.2. The motion is set for hearing on April 23,
20 2012. Under the Civil Local Rules, plaintiffs’ opposition to defendant’s motion was due on or
21 before April 9, 2012. See CIV. L.R. 7.1.e.2. But plaintiffs have not opposed the motion nor have
22 they sought additional time in which to respond to the motion to dismiss.
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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

24 manner required by Local Rule 7.1.e.2, that failure may constitute a consent to the granting of
25 that motion or other ruling by the court." When an opposing party receives notice under Federal
26 Rule of Civil Procedure 5(b) and is given sufficient time to respond to a motion to dismiss, the
27 Court may grant the motion based on failure to comply with a local rule. See generally Ghazali
28 v. Moran, 46 F.3d 52, 52 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to file
11cv2530

1 timely opposition papers where plaintiff had notice of the motion and ample time to respond).
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Here, plaintiffs were properly served with defendant’s motion, which was filed on March

3 5, 2012, and therefore they had five weeks to oppose the motion. Because the motion to dismiss
4 is unopposed, and relying on Civil Local Rule 7.1(f.3.c), the Court deems plaintiffs’ failure to
5 oppose defendant’s motion as consent to granting it.
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The Court notes that the only other defendant that has been served, the FDIC, was

7 dismissed on January 3, 2012. [doc. #4]. Because the time for service of process on the other
8 named defendants has past and no extension of time for service has been requested, the Court
9 will dismiss the Complaint in its entirety.
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Based on the foregoing, IT IS ORDERED:

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1.

Defendant JPMorgan Chase Bank N.A.’s motion to dismiss plaintiffs’ complaint is
GRANTED;

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The unserved named defendants are DISMISSED;

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3.

The Clerk of the Court is directed to CLOSE this case.

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IT IS SO ORDERED.

16 DATED: April 16, 2012
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M. James Lorenz
United States District Court Judge

19 COPY TO:
20 HON. BARBARA L. MAJOR
UNITED STATES MAGISTRATE JUDGE
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22 ALL PARTIES/COUNSEL
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11cv2530