Marin v. Comerica Incorporated et al

Filing 38

ORDER: Granting 33 Defendants' Motion to Dismiss; (2) Denying as Moot Defendants' Request For Judicial Notice; (3) Vacating Hearing Date. Plaintiff's First Amended Complaint is Dismissed Without Prejudice, and the hearing o n Defendants' Motion to Dismiss, currently set for January 16, 2015 at 1:30 p.m., is Vacated. The Court Denies as Moot Defendants' Request for Judicial Notice, without prejudice to any later re-filing. Signed by Judge Gonzalo P. Curiel on 1/9/2015. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MEL M. MARIN,

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CASE NO. 14cv1962-GPC-BGS
Plaintiff,

(1) GRANTING DEFENDANTS’
MOTION TO DISMISS;

v.

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COMERICA INCORPORATED, ET
AL.,
Defendants.

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ORDER:

(2) DENYING AS MOOT
DEFENDANTS’ REQUEST FOR
JUDICIAL NOTICE;
(3) VACATING HEARING DATE
[Dkt. No. 33.]

On November 24, 2014, Defendants Comerica Incorporated, Ralph Babb, Jr.,
and Frank Peraino (“Defendants”) filed a Motion to Dismiss Plaintiff Mel M. Marin’s
(“Plaintiff”) First Amended Complaint, as well as a supporting Request for Judicial
Notice. (Dkt. No. 33.) The Court set a briefing schedule requiring Plaintiff to file a
response by December 22, 2014. (Dkt. No. 35.) To date, Plaintiff has not filed an
opposition.
Civil Local Rule 7.1.e.2. requires a party opposing a motion to file an opposition
or statement of non-opposition within fourteen calendar days of the noticed hearing.
Failure to comply with these rules “may constitute a consent to the granting of a
motion.” Civ. Local R. 7.1.f.3.c. District courts have broad discretion to enact and
apply local rules, including dismissal of a case for failure to comply with the local
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1 rules. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming grant of an
2 unopposed motion to dismiss under local rule by deeming a pro se litigant's failure to
3 oppose as consent to granting the motion); United States v. Warren, 601 F.2d 471, 474
4 (9th Cir. 1979). Before dismissing an action for failure to comply with local rules, the
5 district court “weigh[s] several factors: ‘(1) the public’s interest in expeditious
6 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of
7 prejudice to the defendants; (4) the public policy favoring disposition of cases of their
8 merits; and (5) the availability of less drastic sanctions.’” Ghazali, 46 F.3d at 53
9 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).
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Here, the Court concludes that “the public’s interest in expeditious resolution of

11 litigation,” “the court’s need to manage its docket,” and “the risk of prejudice to the
12 defendants” weigh in favor of granting the Motion to Dismiss based on Plaintiff’s
13 failure to file an opposition. See Ghazali, 46 F.3d at 53. The majority of these factors
14 weigh in favor of dismissal.
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Because Plaintiff has failed to comply with Civil Local Rule 7.1.f.3.c, the Court

16 finds good cause to grant Defendants’ unopposed Motion to Dismiss. The Court’s
17 docket reflects that Plaintiff was served with a copy of the motion and the Court’s
18 briefing schedule. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss
19 as unopposed. See Civ. Local R. 7.1.f.3.c; see also Ghazali, 46 F.3d at 53. In addition,
20 the Court DENIES AS MOOT Defendants’ Request for Judicial Notice, without
21 prejudice to any later re-filing.
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IT IS HEREBY ORDERED that Plaintiff’s First Amended Complaint is

23 DISMISSED WITHOUT PREJUDICE, and the hearing on Defendants’ Motion to
24 Dismiss, currently set for January 16, 2015 at 1:30 p.m., is VACATED.
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IT IS SO ORDERED.

26 DATED: January 9, 2015
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HON. GONZALO P. CURIEL
United States District Judge
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