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

Filing 4

ORDER granting 2 FDIC's Motion to Dismiss for Lack of Jurisdiction. Signed by Judge M. James Lorenz on 1/3/2012. (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,
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 FDIC’S
MOTION TO DISMISS [doc. #2]

On November 7, 2011, defendant Federal Deposit Insurance Corporation, as Receiver of

18 Washington Mutual Bank, filed a motion to dismiss claims for lack of subject matter jurisdiction
19 under Federal Rule of Civil Procedure 12(b)(1). See CIV. L.R. 7.1.e.2. The motion was set for
20 hearing on January 9, 2012. Under the Civil Local Rules, plaintiffs’ opposition to defendant’s
21 motion was due on or before December 23, 2011. See CIV. L.R. 7.1.e.2. But plaintiffs have not
22 opposed the motion nor have they sought additional time in which to respond to the motion to
23 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

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." When an opposing party receives notice under Federal
27 Rule of Civil Procedure 5(b) and is given sufficient time to respond to a motion to dismiss, the
28 Court may grant the motion based on failure to comply with a local rule. See generally Ghazali
11cv2530

1 v. Moran, 46 F.3d 52, 52 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to file
2 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

4 November 7, 2011, and therefore they had six weeks to oppose the motion. Because the motion
5 to dismiss is unopposed, and relying on Civil Local Rule 7.1(f.3.c), the Court deems plaintiffs’
6 failure to oppose defendant’s motion as consent to granting it.
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Based on the foregoing, IT IS ORDERED defendant FDIC’s motion to dismiss claims

8 asserted against it for lack of subject matter jurisdiction is GRANTED.
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IT IS SO ORDERED.

10 DATED: January 3, 2012
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M. James Lorenz
United States District Court Judge

13 COPY TO:
14 HON. BARBARA L. MAJOR
UNITED STATES MAGISTRATE JUDGE
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16 ALL PARTIES/COUNSEL
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11cv2530