Blank v. Hydro-Thermal Corporation et al

Filing 22

ORDER Granting 12 Motion to Dismiss for Lack of Prosecution. Relying on Civil Local Rule 7.1(f.3.c), the Court deems Plaintiff's failure to oppose Defendant's motion as consent to its merits, and on that basis Grants Defendant's motion and Dismisses this case Without Prejudice for failure to prosecute. Signed by Judge Thomas J. Whelan on 10/8/2013. (leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AARON BLANK,

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CASE NO. 12-CV-2611 W (BGS)
Plaintiff,

ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS [DOC. 12]

v.
HYDRO-THERMAL
CORPORATION,
Defendant.

Pending before the Court is Defendant Hydro-Thermal Corporation’s motion to

17 dismiss for failure to prosecute. The Court decides the matter on the papers submitted
18 and without oral argument pursuant to Civil Local Rule 7.1(d.1).
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Plaintiff Aaron Blank commenced this lawsuit in the San Diego Superior Court

20 on September 21, 2012. (See Not. of Removal [Doc. 1], Ex. 1 [Doc. 1-1].) On October
21 26, 2012, Defendant removed the action to this court based on diversity jurisdiction.
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On July 22, 2013, Defendant filed the pending motion to dismiss. Defendant
24 argues that “Plaintiff and his counsel have abandoned this case,” and “have done
25 nothing to prosecute this case since filing it ten months ago and recently failed to
26 appear at the mandatory early neutral evaluation conference.” (MTD P&A [Doc. 1227 1], 1:2–4.) The hearing on the motion was set for September 9, 2013.
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12cv2611w

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Based on the hearing date, Plaintiff’s opposition to Defendant’s motion was due

2 on or before September 3, 2013. Plaintiff did not file an opposition. However, on
3 September 4, 2013, Plaintiff filed a request for court approval of a substitution of
4 attorney. (See Notice of Substitution [Doc. 15].) Plaintiff requested that the Court
5 approve the substitution of Alan L. Williams, as counsel of record, in place of Mark
6 Teuton. (Id., 1:20–22.) According to the notice, “Mr. Teuton has abandoned Plaintiff
7 and this case” and, as a result, “Plaintiff has been unaware of proceedings, hearings and
8 motions pending in this Court since that time.” (Id., 1:23–27.)
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On September 12, 2013, this Court approved the substitution of attorney. (See

10 Order [Doc. 16].) Despite the substitution, to date, Plaintiff has not filed an opposition
11 to Defendant’s motion to dismiss, nor has Plaintiff filed a request for an extension of
12 time to file an opposition. Instead, Plaintiff has left the motion unopposed.
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Civil Local Rule 7.1(f.3.c) expressly provides that “[i]f an opposing party fails to

14 file papers in the manner required by Local Rule 7.1(e)(2), that failure may constitute
15 a consent to the granting of that motion or other ruling by the court.” The Ninth
16 Circuit has held that a district court may properly grant a motion to dismiss for failure
17 to respond. See generally Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per
18 curiam) (affirming dismissal for failure to file timely opposition papers where plaintiff
19 had notice of the motion and ample time to respond).
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Relying on Civil Local Rule 7.1(f.3.c), the Court deems Plaintiff’s failure to

21 oppose Defendant’s motion as consent to its merits, and on that basis GRANTS
22 Defendant’s motion [Doc. 12] and DISMISSES THIS CASE WITHOUT
23 PREJUDICE for failure to prosecute.
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IT IS SO ORDERED.

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26 DATED: October 8, 2013
Hon. Thomas J. Whelan
United States District Judge

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