Garcia v. Souldriver, L.P. et al
Filing
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ORDER granting 5 Motion to Dismiss for Failure to State a Claim and dimisses without prejudice Plaintiffs complaint. Accordingly, the Court VACATES the hearing set for June 9, 2021. Signed by Judge Todd W. Robinson on 6/4/2021. (jms)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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ORLANDO GARCIA,
Case No.: 21-CV-82 TWR (MSB)
Plaintiff,
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SOULDRIVER, L.P., a Delaware Limited
Partnership; SOULDRIVER LESSEE,
INC., a Delaware Corporation; and Does
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ORDER VACATING HEARING AND
GRANTING UNOPPOSED MOTION
TO DISMISS
v.
Defendants.
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(ECF No. 5)
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On October 30, 2020, Plaintiff Orlando Garcia filed this action against Defendants
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Souldriver, L.P. and Souldriver Lessee, Inc. in the Superior Court of California, County of
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San Diego. (See ECF No. 1-1.) On January 15, 2021, Defendants removed, (see ECF No.
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1), and on March 3, 2021, Defendants filed the instant Motion to Dismiss pursuant to
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Federal Rule of Civil Procedure 12(b)(6). (“Mot.,” ECF No. 5). The Court set the Motion
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for hearing on June 9, 2021. Pursuant to the undersigned’s Standing Order for Civil Cases,
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Plaintiff was required to file a response in opposition to the Motion on or before May 12,
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2021. See also S.D. Cal. Civ. L.R. 7.1.e.2 (stating that “each party opposing a motion . . .
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must file that opposition or statement of non-opposition . . . not later than fourteen (14)
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calendar days prior to the noticed hearing”). Plaintiff has not yet filed an opposition brief
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21-CV-82 TWR (MSB)
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or statement of non-opposition in response to Defendants’ Motion. (See Docket.)
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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, Ghazali
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v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Here, Civil Local Rule 7.1.f.3.c provides, “[i]f
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an opposing party fails to file the papers in the manner required by [the relevant] Civil
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Local Rule[s], that failure may constitute a consent to the granting of a motion or other
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request for ruling by the court.” As such, the Court has the option of granting Defendants’
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Motion on the basis of Plaintiff’s failure to oppose. Generally, public policy favors
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disposition of cases on their merits. See Hernandez v. City of El Monte, 138 F.3d 393, 399
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(9th Cir. 1998). However, a case cannot move towards resolution on the merits when the
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plaintiff fails to defend his or her complaint against a Rule 12 motion. Accordingly, the
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Court VACATES the hearing set for June 9, 2021, GRANTS Defendants’ unopposed
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Motion to Dismiss, and DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint.
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IT IS SO ORDERED.
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Dated: June 4, 2021
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21-CV-82 TWR (MSB)
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