Hairani v. Blinken et al

Filing 11

ORDER Granting 8 Defendants' Motion to Dismiss Pursuant to Civil Local Rule 7.1(f)(3)(c). Signed by Judge Janis L. Sammartino on 9/26/24. (All non-registered users served via U.S. Mail Service)(aas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MASOUD HAIRANI,

Case No.: 24-CV-614 JLS (MSB)
Plaintiff,

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v.

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ANTONY J. BLINKEN, U.S. Secretary of
State; U.S. DEPARTMENT OF STATE,

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ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS PURSUANT
TO CIVIL LOCAL RULE 7.1(f)(3)(c)
(ECF No. 8)

Defendants.

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Presently before the Court is Defendants Antony J. Blinken and U.S. Department of

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State’s Motion to Dismiss Plaintiff’s Complaint (“Mot.,” ECF No. 8).1,2 Plaintiff has not

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opposed the Motion despite the requirements of Civil Local Rule 7.1(e)(2). For the reasons

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that follow, the Court GRANTS Defendants’ Motion pursuant to Civil Local Rule

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7.1(f)(3)(c).
BACKGROUND

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Plaintiff Masoud Hairani brought this action on April 1, 2024. He alleges his fiancé,

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Mansoureh Ashourion, an Iranian national, applied for a K-1 visa application on

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All citations to electronically filed documents refer to the blue pagination numbers assigned by the
CM/ECF system.

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Defendants also sought to incorporate by reference a declaration attached to their Motion, see Mot.
at 12, but that request is DENIED as MOOT given the Court’s resolution of the Motion.

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January 23, 2022, so she could join him in the United States “to commence their marital

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life and family planning.” Complaint (“Compl.”) at 2, ECF No. 1. Despite completing an

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interview at the United States Embassy in Abu Dhabi on September 28, 2023, Ashourion

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still awaits a final decision more than six months later. Id. Plaintiff alleges this delay is

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unreasonable and has caused him “undue hardship.” Id. Plaintiff seeks injunctive relief

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ordering Defendants to process Ashourion’s K-1 visa application within sixty days of this

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Court’s order. Id. at 3.

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Defendants filed the instant Motion on August 23, 2024. In the Motion, Defendants

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raise multiple grounds for dismissal, including failure to affirmatively state the Court’s

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jurisdictional grounds in contravention of Federal Rule of Civil Procedure 8(a)(1), see Mot.

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at 12, and failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), see Mot.

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at 13.

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The Motion was originally noticed for a hearing on September 26, 2024.

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Accordingly, per Civil Local Rule 7.1(e)(2), Plaintiff was required to respond to the Motion

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on or before September 12, 2024. He failed to do so. See Docket. Plaintiff’s silence has

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since continued, though the Court noted his noncompliance when taking the Motion under

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submission. See ECF No. 10.

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DISCUSSION

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The Ninth Circuit has held that, pursuant to a local rule, a district court may properly

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grant a motion to dismiss for failure to respond to a motion. See Ghazali v. Moran,

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46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to file timely

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opposition papers where plaintiff had notice of the motion and ample time to respond).

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Here, a local rule authorizes the Court to grant the Motion. Civil Local Rule 7.1(f)(3)(c)

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provides: “If an opposing party fails to file [an opposition] 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 other

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request for ruling by the court.”

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In determining whether to dismiss an action on these grounds, the Court must weigh

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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 public

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policy favoring disposition of cases of [sic] 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 1421,

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1423 (9th Cir. 1986)). The first and fourth factors cut in opposite directions. See Yourish

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v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“[T]he public’s interest in expeditious

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resolution of litigation always favors dismissal.”); Hernandez v. City of El Monte,

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138 F.3d 393, 401 (9th Cir. 1998) (stating the fourth factor weighs against dismissal). The

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Court therefore considers the substance of factors two, three, and five.

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Here, the second factor weighs in favor of dismissal. The Court must manage its

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docket to ensure the efficient provision of justice. Plaintiff had notice of the Motion yet

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failed to file a timely opposition. Further, Plaintiff has not provided any excuse for said

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failure. The Court cannot continue waiting for Plaintiff to take action, and a case cannot

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move forward when the plaintiff fails to defend his case. Plaintiff’s noncompliance is not

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excusable merely because he has no legal representation.

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790 F.2d 1362, 1364–65 (holding that even a pro se litigant is not entitled to a warning of

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the consequences of failing to file an opposition).

See Jacobsen v. Filler,

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The third factor, which considers the prejudice to a defendant resulting from a

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plaintiff’s inaction, also favors dismissal. See Malone v. U.S.P.S., 833 F.2d 128, 131

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(9th Cir. 1987). Under this factor, “the risk of prejudice . . . is related to [Plaintiff’s] reason

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for defaulting in failing to timely” file his opposition. Yourish, 191 F.3d at 991. Where,

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as here, a plaintiff fails to provide any excuse for his conduct or contact the Court regarding

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said failure, this factor weighs in favor of dismissal. See, e.g., Enders v. Countrywide

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Home Loans, Inc., No. C 09-3213SBA, 2009 WL 4018512, at *2 (N.D. Cal.

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Nov. 16, 2009).

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As to the fifth factor, where the plaintiff does not oppose dismissal, it is “unnecessary

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for the Court to consider less drastic alternatives.” Rodriguez v. Nationstar Mortg. LLC,

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No. 2:16–CV–5962–ODW(SK), 2016 WL 4581402, at *1 (C.D. Cal. Sept. 1, 2016). Still,

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the Court did employ the less drastic alternative of giving notice to the Parties that no
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opposition had been filed. As noted above, the Court filed an Order vacating the hearing

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on the Motion and taking the matter under submission. See ECF No. 10. In that Order, the

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Court noted that no opposition had been filed, even though Civil Local Rule 7.1(e)(2)

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required Plaintiff to respond. See id. Still, Plaintiff remained silent. This factor therefore

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weighs in favor of dismissal as well.

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CONCLUSION

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Finding that the Ghazali factors weigh in favor of granting the unopposed Motion,

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the Court GRANTS Defendants’ Motion to Dismiss (ECF No. 8) pursuant to Civil Local

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Rule 7.1(f)(3)(c).

Accordingly, the Court DISMISSES WITHOUT PREJUDICE

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Plaintiff’s Complaint (ECF No. 1). Plaintiff MAY FILE an amended complaint curing

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the deficiencies identified in Defendants’ Motion within fourteen (14) days of the date on

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which this Order is electronically docketed. Should Plaintiff fail to file an amended

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pleading in accordance with this Order, the Court will enter a final order dismissing this

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civil action based on Plaintiff’s failure to prosecute in compliance with a court order

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requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a

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plaintiff does not take advantage of the opportunity to fix his complaint, a district court

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may convert the dismissal of the complaint into dismissal of the entire action.”).

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IT IS SO ORDERED.
Dated: September 26, 2024

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