J&J Sports Productions, Inc. v. Avila et al

Filing 9

ORDER that 7 Motion to Dismiss Counterclaims is GRANTED. Signed by Judge James C. Mahan on 8/6/13. (Copies have been distributed pursuant to the NEF - MMM)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 J & J SPORTS PRODUCTIONS, INC., 9 2:13-CV-763 JCM (CWH) Plaintiff(s), 10 11 v. MANUEL AVILA, et al., 12 13 14 Defendant(s). ORDER 15 Presently before the court is plaintiff-counterdefendant J&J Sports Productions, Inc. motion 16 to dismiss counterclaims. (Doc. # 7). Pro se defendants have not filed a response in opposition and 17 the deadline date for filing a response has expired. 18 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 19 as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 20 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Where a 21 complaint pleads facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the 22 line between possibility and plausibility of entitlement to relief.’” Id. (citing Bell Atlantic, 550 U.S. 23 at 557). However, where there are well pled factual allegations, the court should assume their 24 veracity and determine if they give rise to relief. Id. at 1950. 25 Pursuant to Local Rule 7-2(d), an opposing party’s failure to file a timely response to any 26 motion constitutes the party’s consent to the granting of the motion and is proper grounds for 27 dismissal. U.S. v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). However, prior to dismissal, the 28 James C. Mahan U.S. District Judge 1 district court is required to weigh several factors: “(1) the public's interest in expeditious resolution 2 of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) 3 the public policy favoring disposition of cases of their merits; and (5) the availability of less drastic 4 sanctions.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (citing Henderson v. Duncan, 779 F.2d 5 1421, 1423 (9th Cir. 1986)). 6 7 In light of the defendants’ failure to respond and weighing the factors identified in Ghazali, the court finds dismissal appropriate. 8 Accordingly, 9 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff- 10 11 counterdefendant’s motion to dismiss (doc. # 7) be, and the same hereby, is GRANTED. DATED August 6, 2013. 12 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -2-

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