Langer v. YM Holdings, LLC

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 CHRIS LANGER, Case No.: 18-CV-1114 JLS (KSC) 12 Plaintiff, ORDER GRANTING 13 v. DEFENDANT YM HOLDINGS, LLC’S UNOPPOSED MOTION TO 14 YM HOLDINGS, LLC; DONG SOO DISMISS PLAINTIFF’S FIRST LEE; SUJIN LEE; AND DOES 1-10, 15 AMENDED COMPLAINT Defendants. [16] (ECF No. 21) [17] 18 Presently before the Court is Defendant YM Holdings, LLC’s Motion to Dismiss 19 Plaintiff’s First Amended Complaint, (“Mot.,” ECF No. 21). Plaintiff has not filed an 20 opposition to the Motion. 21 The Ninth Circuit has held that pursuant to a local rule a district court may properly 22 grant a motion to dismiss for failure to respond. See generally Ghazali v. Moran, 46 F.3d 23 52, 53 (9th Cir. 1995) (affirming dismissal for failure to file timely opposition papers where 24 plaintiff had notice of the motion and ample time to respond). Here, a local rule does allow 25 the Court to grant the Motion: Civil Local Rule 7.1.f.3.c. provides “[i]f an opposing party 26 fails to file [an opposition] in the manner required by Civil Local Rule 7.1.e.2, that failure 27 may constitute a consent to the granting of a motion or other request for ruling by the 28 court.” An opposition must be filed 14 days prior to the noticed hearing. S.D. Cal. Civ. 1 R. 7 .1.e.2. The hearing for the present Motion was set for September 24, 2020 at 1:30 p.m., 2 thus any opposition was due on September 10, 2020. 3 In determining whether to dismiss an action, the court is required to weigh several 4 factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 5 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 6 favoring disposition of cases on their merits; and (5) the availability of less drastic 7 sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421 , 1423 8 (9th Cir. 1986)). The Ninth Circuit has recognized that the first and fourth factors cut in 9 opposite directions. See Yourish v. Cal. Amplifier, 191 F.3d 983 , 990 (9th Cir. 1999) (first 10 factor always weighs in favor of dismissal); Hernandez v. City of El Monte, 138 F.3d 393 , 11 401 (9th Cir. 1998) (fourth factor always weighs against dismissal). Therefore, the Court 12 considers the substance of factors two, three, and five. 13 Here, the second factor weighs in favor of dismissal. The Court must manage its 14 docket to ensure the efficient provision of justice. Plaintiff had notice of the Motion yet 15 failed to file a timely opposition. Defendant’s Motion contains a proof of service indicating 16 that Plaintiff was served with the Motion. (See ECF No. 21-8.) Additionally, Plaintiff 17 requested the Clerk of the Court enter default in this matter against Defendants Dong Soo 18 Lee and Sujin Lee, (see ECF Nos. 24, 25), so Plaintiff is showing an intention to participate 19 in this lawsuit after Defendant YM Holdings, LLC’s filed its Motion to Dismiss. Plaintiff 20 has not provided any excuse for his failure to timely file an opposition to the present 21 Motion. Further, Plaintiff is represented by an attorney and nonetheless has failed to 22 comply with the rules of procedure. See Holt v. I.R.S., 231 Fed. Appx. 557, 558 (9th Cir. 23 2007) (holding court did not abuse its discretion in dismissing action for failure to file an 24 opposition and rejecting plaintiff’s contention that the district court should have warned 25 her of the consequences of failing to file an opposition). The Court cannot continue waiting 26 for Plaintiff to take action. 27 As to the third factor, the Court finds no risk of prejudice to Defendant if it dismisses 28 Defendant from this matter. In fact, Defendant has requested the dismissal. This factor 1 || weighs in favor of dismissal. As for the fifth factor, where the plaintiff does not oppose 2 || dismissal it is “unnecessary for the Court to consider less drastic alternatives.” Rodriguez 3 || v. Nationstar Mortg. LLC, No. 2:16—CV-—5962—ODW(SK), 2016 WL 4581402 , at *1 (C.D. 4 ||Cal. Sept. 1, 2016). On September 18, 2020, the Court filed an Order vacating the hearing 5 the Motion and taking the matter under submission. (ECF No. 28.) Still, Plaintiff filed 6 ||no opposition. This factor therefore weighs in favor of dismissal. 7 Finding that the Ghazali factors weigh in favor of granting Defendant’s Motion to 8 || Dismiss as unopposed, the Court GRANTS Defendant’s Motion and DISMISSES WITH 9 || PREJUDICE Plaintiff’s claims against Defendant YM Holdings, LLC. The Clerk 10 || SHALL remove Defendant YM Holdings, LLC from the docket. 11 IT IS SO ORDERED. 12 ||Dated: January 14, 2021 . tt f te 13 on. Janis L. Sammartino 14 United States District Judge