Kachaluba v. General Motors, LLC

[2] FILED af ee ee 5 MAY 14 mt | 6 CLERK. U.S. DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 7 BY ifs DEPUTY [8] IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA [10] 11 Case No. 23-cv-02301-BEN-MMP SARAH BUCK KACHALUBA, 13 Plaintiff, ORDER GRANTING UNOPPOSED, 7 V. PARTIAL MOTION TO DISMISS 15 || GENERAL MOTORS, LLC, a limited [ECF No. 3] liability company; and DOES | through 16 10, inclusive, [17] Defendants. [19] 20 On December 18, 2023, Defendant General Motors, LLC (“Defendant”) filed a 21 |/motion to dismiss the fourth and fifth causes of action alleged in Plaintiff Sarah Buck 22 || Kachaluba’s (“Plaintiff”) complaint pursuant to Federal Rules of Civil Procedure 9 and 23 || 12(b)(6). ECF No. 3. Plaintiff's opposition was due on January 8, 2024. See generally 24 ||Dkt. Having considered Defendant’s motion and Plaintiffs failure to oppose, which the 25 ||Court construes as consent to grant the motion’s request, the Court hereby GRANTS 26 || Defendant’s unopposed motion to dismiss. 27 Southern District of California Civil Local Rule 7.1.e.2 requires a party opposing 28 |/a motion to file an opposition or statement of non-opposition within fourteen calendar 1 days of the noticed hearing. Local Rule 7.1.f.3.a further states that any party choosing 2 ||not to oppose a motion must file a written statement that they do not oppose the motion 3 || or otherwise request for ruling by the Court. “If an opposing party fails to file the papers 4 the manner required by Local Rule 7.1.e.2, that failure may constitute a consent to the 5 |} granting of a motion or other request for ruling by the Court.” See Local Rule 7.1.f.3.c. 6 The Ninth Circuit has held that a district court may properly grant a motion to 7 dismiss as unopposed pursuant to a local rule where the local rule permits, but does not 8 ||require, the granting of a motion for failure to respond. See Ghazali v. Moran, 46 F.3d 9 53 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to timely file 10 |} opposition papers). Prior to granting an unopposed motion for dismissal, the Court must 11 || weigh the following factors: “(1) the public’s interest in expeditious resolution of 12 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 13 defendants; (4) the public policy favoring disposition of cases of their merits; and (5) the 14 |\availability of less drastic sanctions.” Jd. (quoting Henderson v. Duncan, 779 F.2d 1421 , 15 || 1423 (9th Cir. 1986)). 16 Here, Plaintiff, who is represented by counsel, has had ample time to prepare a 17 || written opposition to Defendant’s motion, but failed to do so. See Holt v. LR.S., 231 Fed. 18 || App’x. 557, 558 (9th Cir. 2007) (holding court did not abuse its discretion in dismissing 19 || action for failure to file an opposition and rejecting plaintiff's contention that the district 20 ||}court should have warned her of the consequences for failing to file an opposition). 21 Plaintiff's failure to comply with filing deadlines favors granting Defendant’s motion to 22 ||dismiss in the interest of expeditious resolution. Dismissal is also appropriate as 23 || significant delay in resolution of this matter prejudices Defendant. 24 While public policy generally favors disposition of cases on the merits, the Court 25 finds the fourth Ghazali factor weighs in favor of dismissal because Plaintiff failed to 26 defend this motion to dismiss in any manner and offered no justification for failing to do 27 With respect to less drastic measures, the Court notes that Defendant’s motion does 28 ||not seek to dismiss the case entirely. Instead, Defendant seeks to dismiss only □□□□□□□□□□□ 2, 1 |/fourth and fifth causes of action for fraud and violation of California Business & 2 ||Professions Code §§ 17200 et seg. The Court will do so without prejudice. Accordingly, 3 ||the Court finds the factors weigh in favor of granting Defendant’s unopposed motion to 4 || dismiss. 5 For the reasons set forth above, this Court orders: 6 1. Defendant’s unopposed motion to dismiss is GRANTED; and 7 2. Plaintiffs claims for fraud and violation of California Business & Professions 8 Code §§ 17200 et seg. are DISMISSED without prejudice. 9 || SO ORDERED. ~ 10 |)Dated: May 13, 2024 11 “Roger T. Benite - {United States District [26] 2/