Francis v. Oregon State University et al
ORDER: The motion to dismiss filed by Defendant Oregon State University is Granted.(ECF No. 29 ). The Complaint is dismissed without prejudice as to Defendant Oregon State University. Plaintiff shall file any motion for leave to file an amended com plaint pursuant to Local Civil Rule 7.1 and within thirty (30) days of the date this Order is issued. This Order constitutes notice to Plaintiff that the Court will dismiss this action against Defendant Liskevych without prejudice on 12/20/2017 un less, no later than that date, Plaintiff files either (1) proof that service of the summons and complaint was timely effectuated or (2) a declaration under penalty of perjury showing good cause for failure to timely effect service upon the Defendant Liskevych accompanied by a motion for leave to serve process outside of the 90-day period. Signed by Judge William Q. Hayes on 11/29/2017. (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CASE NO. 16cvl860-WQH-WVG
OREGON STATE UNIVERSITY~
TARAS LISKEVYCH; and DOE" 1
through 100 inclusive,
15 HA YES, Judge:
The matter before the Court is the Motion to Dismiss Plaintiff's First Amended
17 Complaint. (ECF No. 29).
18 I. BACKGROUND
On July 21, 2016, Plaintiff Sydney Francis initiated this action by filing a
20 Complaint alleging the following causes of action against Defendants Oregon State
University ("OSU"), Taras Liskevych, and Does 1 through 100, inclusive. (ECF No.
On June 1, 2017, the Court issued an Order denying a motion to change venue
filed by Defendant OSU and granting a motion to dismiss for failure to state a claim
filed by Defendant OSU. (ECF No. 23). The Court also dismissed the complaint
against Defendant Taras Liskevych for insufficient service. Id.
On July 3, 2017, Plaintiff filed a motion for leave to file an amended complaint.
(ECF No. 24). On September 11, 2017, the Court granted the motion for leave to file
1 an amended complaint. (ECF No. 27). On September 19, 2017, Plaintiff filed the first
2 amended complaint. (ECF No. 27). In the first amended complaint, Plaintiff alleges
3 the following causes of action against Defendants OSU and Liskevych: (1) breach of
4 contract; (2) fraud/deceit; (3) fraud/bad faith; (4) intentional infliction of emotional
5 distress; (5) civil conspiracy; and (6) punitive damages. (ECF No. 27). These causes
6 of action generally arise from allegations that Defendants cancelled Plaintiffs athletic
7 scholarship to play volleyball for OSU and dismissed her from the team at some point
8 following her freshman year. Id.
On October 3, 201 7, Defendant OSU filed a motion to dismiss the first amended
10 complaint. (ECF No. 29). Defendant OSU contends the amended complaint fails to
cure the deficiencies of the prior complaint. Defendant OSU contends that Plaintiff
12 fails to state any claim with respect to each cause of action alleged in the first amended
The record reflects that Plaintiff has not filed a response in opposition to the
15 motion to dismiss.
16 II. DISCUSSION
Federal Rule of Civil Procedure 12(b )(6) permits dismissal for "failure to state
18 a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of
19 Civil Procedure 8(a) provides that "[a] pleading that states a claim for relief must
contain ... a short and plain statement of the claim showing that the pleader is entitled
to relief." Fed. R. Civ. P. 8(a)(2). "A district court's dismissal for failure to state a
claim under Federal Rule of Civil Procedure l 2(b )(6) is proper if there is a 'lack of a
cognizable legal theory or the absence of sufficient facts alleged under a cognizable
24 legal theory."' Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011)
(quoting Balistreri v. Pacifica Police Dep 't, 901 F .2d 696, 699 (9th Cir. 1990)). "To
26 survive a motion to dismiss, a complaint must contain sufficient factual matter,
27 accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v.
28 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570
A district court may properly grant an unopposed motion pursuant to a local rule
3 where the local rule permits, but does not require, the granting of a motion for failure
4 to respond. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming
5 dismissal for failing to oppose a motion to dismiss, based on a local rule providing that
6 "[t]he failure of the opposing party to file a memorandum of points and authorities in
7 opposition to any motion shall constitute consent to the granting of the motion"). Civil
8 Local Rule 7 .1 provides, "If an opposing party fails to file the papers in the manner
9 required by Civil Local Rule 7. l.e.2, that failure may constitute a consent to the
10 granting of a motion or other request for ruling by the court." CivLR 7.l(t)(3)(c).
"Although there is ... a [public] policy favoring disposition on the merits, it is the
12 responsibility of the moving party to move towards that disposition at a reasonable
13 pace, and to refrain from dilatory and evasive tactics." In re Eisen, 31 F.3d 144 7, 1454
14 (9th Cir. 1994) (quoting Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir.
1991)) (affirming dismissal for failure to prosecute).
The docket reflects that the motion to dismiss for failure to state a claim was
17 served on Plaintiffs counsel on October 3, 2017. The docket reflects that Defendant
18 OSU obtained a hearing date of November 6, 2017 for its motion to dismiss. (ECF No.
19 29-1 ). Pursuant to the local rules, Plaintiff was to file any response to the motion to
20 dismiss no later than fourteen days prior to the hearing date. The docket reflects that
Plaintiff has failed to file any response to the motion as required by Civil Local Rule
22 7.1.e.2. The Court construes Plaintiffs failure to oppose the motion to dismiss as "a
consent to the granting of' the motions. CivLR 7 .1 (t)(3)( c). Upon a review of the
24 motion to dismiss and the First Amended Complaint, the Court concludes that
Defendant OSU's motion raises meritorious arguments sufficient to establish that
26 Plaintiff fails to state a claim against OSU with respect to each cause of action in the
27 First Amended Complaint. Fed. R. Civ. P. 12(b)(6). The motion to dismiss is granted.
28 (ECF No. 29).
1 III. RULING OF THE COURT
IT IS HEREBY ORDERED that the motion to dismiss filed by Defendant
3 Oregon State University is GRANTED. (ECF No. 29). The Complaint is dismissed
4 without prejudice as to Defendant Oregon State University. Plaintiff shall file any
5 motion for leave to file an amended complaint pursuant to Local Civil Rule 7.1 and
6 within thirty (30) days of the date this Order is issued.
The record reflects that no proof of service or responsive pleading has been filed
8 with respect to Defendant Taras Liskevych. Federal Rule of Civil Procedure 4(m)
9 requires that a summons and complaint be served "within 90 days after the complaint
10 is filed ...." Fed. R. Civ. P. 4(m). If a plaintiff fails to serve the summons and
complaint within that time limit, the court may dismiss the action without prejudice
12 after notice to the plaintiff. Id. This Order constitutes notice to Plaintiff that the Court
13 will dismiss this action against Defendant Liskevych without prejudice on December
14 20, 2017 unless, no later than that date, Plaintiff files either (1) proof that service of the
15 summons and complaint was timely effectuated or (2) a declaration under penalty of
16 perjury showing good cause for failure to timely effect service upon the Defendant
17 Liskevych accompanied by a motion for leave to serve process outside of the 90-day
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