Cushinberry v. Vinson et al

Filing 9

ORDER Granting 7 Unopposed Motion to Dismiss. The Court grants Defendants' unopposed motion to dismiss and dismissed Plaintiff's claims without prejudice. Signed by Judge Michael M. Anello on 12/12/2017. (All non-registered users served via U.S. Mail Service)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GARY R. CUSHINBERRY,

Case No.: 17cv1794-MMA (KSC)
Plaintiff,

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v.

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ORDER GRANTING UNOPPOSED
MOTION TO DISMISS

SERGEANT PATRICK VINSON, et al.,
Defendants.

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[Doc. No. 7]

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Plaintiff Gary R. Cushinberry filed this action against Defendants Sergeant Patrick

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Vinson, the San Diego Police Department, and the City of San Diego, California

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(collectively, “Defendants”). See Doc. No. 1. On October 25, 2017, Defendants filed a

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motion to dismiss Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure

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12(b)(6). See Doc. No. 7. The Court set the motion for hearing on December 4, 2017,

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meaning that Plaintiff was required to file a response in opposition to the motion or

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before November 20, 2017. See Civ. L.R. 7.1.e.2 (stating that “each party opposing a

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motion . . . must file that opposition or statement of non-opposition . . . not later than

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fourteen (14) calendar days prior to the noticed hearing”). Plaintiff has not yet filed an

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opposition brief or statement of non-opposition in response to Defendants’ motion to

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dismiss. See Docket.

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17cv1794-MMA (KSC)

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The Ninth Circuit has held that a district court may grant an unopposed motion to

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dismiss where a local rule permits, but does not require, it to do so. See generally,

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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Here, Civil Local Rule 7.1.f.3.c

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provides, “[i]f an opposing party fails to file the papers in the manner required by Civil

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Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or

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other request for ruling by the court.” As such, the Court has the option of granting

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Defendants’ motion to dismiss on the basis of Plaintiff’s failure to oppose.1 Generally,

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public policy favors disposition of cases on their merits. See Hernandez v. City of El

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Monte, 138 F.3d 393, 399 (9th Cir. 1998). However, a case cannot move forward toward

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resolution on the merits when the plaintiff fails to defend his complaint against a motion

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to dismiss. Accordingly, the Court GRANTS Defendants’ unopposed motion to dismiss

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[Doc. No. 7], and DISMISSES Plaintiff’s claims without prejudice. The Clerk of Court

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is instructed to close this case.

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IT IS SO ORDERED.

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Dated: December 12, 2017

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Plaintiff’s failure to comply with the provisions of Civil Local Rule 7.1.e.2 also constitutes a failure to
comply with the provisions of this Court’s Local Rules, which serves as an additional basis for dismissal
under Civil Local Rule 41.1.b.
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17cv1794-MMA (KSC)