Ortiz v. Walmart, Inc. et al

Filing 36

ORDER Granting 34 Motion to Dismiss Defendant Julio Galvan. Signed by Judge Gonzalo P. Curiel on 11/16/21. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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REBECCA ORTIZ,

Case No.: 20-cv-02219-GPC(AGS)
Plaintiff,

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v.

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ORDER GRANTING DEFENDANT
JULIO GALVAN’S MOTION TO
DISMISS AS UNOPPOSED

WALMART, INC.; DOES 1 THROUGH
25, INCLUSIVE

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Defendant.

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[Dkt. No. 34.]

Before the Court is Defendant Julio Galvan’s motion to dismiss first amended
complaint against him for failing to timely serve. (Dkt. No. 34.) No opposition was
filed. Based on the reasoning below, the Court GRANTS Defendant’s motion as
unopposed.
BACKGROUND
On May 28, 2020, Plaintiff Rebecca Ortiz (“Plaintiff”) filed a complaint in San
Diego Superior Court against Defendant Walmart, Inc. alleging negligence and premises
liability for injuries she allegedly sustained while shopping at Defendant’s store located
at 2540 Rockwood Avenue in Calexico, California. (Dkt. No. 1-2, Compl.) On
November 13, 2020, Defendant removed this action to this Court. (Dkt. No. 1.) On April
26, 2021, the Court granted Plaintiff’s motion for leave to file an amended complaint.
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20-cv-02219-GPC(AGS)

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(Dkt. No. 17.) Plaintiff filed a first amended complaint (“FAC”) against Defendant

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Walmart, Inc., Cesar Rico (“Rico”), and Julio Galvan (“Galvan”). (Dkt. No. 18.)

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Defendants Walmart and Rico filed their answers. (Dkt. Nos. 25, 33.) Defendant Gavan

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filed a motion to dismiss the FAC against him because he was not timely served. (Dkt.

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No. 34.) No opposition was filed.

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DISCUSSION
Civil Local Rule 7.1.e.2. requires a “party opposing a motion to file an opposition

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or statement of non-opposition within fourteen calendar days of the noticed hearing.

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Failure to comply with these rules “may constitute a consent to the granting of a motion.”

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Civ. Local R. 7.1.f.3.c. District courts have broad discretion to enact and apply local

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rules, including dismissal of a case for failure to comply with the local rules. Ghazali v.

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Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming grant of an unopposed motion to

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dismiss under local rule by deeming a pro se litigant’s failure to oppose as consent to

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granting the motion); United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). Before

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dismissing an action for failure to comply with local rules, the district court “weigh[s]

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several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the

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court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the

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public policy favoring disposition of cases of their merits; and (5) the availability of less

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drastic sanctions.’” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d

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1421, 1423 (9th Cir.1986)).

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Here, the Court concludes that “the public’s interest in expeditious resolution of

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litigation,” “the court’s need to manage its docket,” and “the risk of prejudice to the

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defendants” weigh in favor of granting the motion to dismiss based on Plaintiff’s failure

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to file an opposition. See Ghazali, 46 F.3d at 53. Because the majority of these factors

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weigh in favor of dismissal, the Court finds good cause to grant Defendant Galvan’s

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unopposed motion to dismiss the FAC against him. See Civ. Local R. 7.1.f.3.c; see also

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Ghazali, 46 F.3d at 53.

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20-cv-02219-GPC(AGS)

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Conclusion
Based on the above, the Court GRANTS Defendant Galvan’s motion to dismiss the
FAC against him. The hearing set on November 19, 2021 shall be vacated.

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IT IS SO ORDERED.

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Dated: November 16, 2021

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