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Deperio v. DSL Service Company's Unopposed Downey Savings & Loan Association F.A.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 18, 2009

EDWARD QUINACMAN DEPERIO, ET AL, PLAINTIFF,
v.
DSL SERVICE COMPANY'S UNOPPOSED DOWNEY SAVINGS & LOAN ASSOCIATION F.A., ET AL, DEFENDANT.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER GRANTING DEFENDANT MOTION TO DISMISS FOR FAILURE TO PROSECUTE

[Doc. No. 52]

This matter is before the Court on Defendant DSL Service Company's ("Defendant") motion to dismiss this action in its entirety based on Plaintiffs' failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Plaintiffs did not file an opposition.

On October 2, 2009, the Court sua sponte dismissed Plaintiffs' First Amended Complaint as to all remaining defendants [Doc. No. 51]. The Court granted Plaintiffs leave to file a further amended complaint on or before October 19, 2009. Plaintiffs failed to do so. On November 23, 2009, Defendant brought the instant motion, requesting that the Court dismiss this case based on Plaintiffs failure to prosecute.

The Ninth Circuit has held a district court may properly grant an unopposed motion to dismiss pursuant to a local rule where the local rule permits, but does not require, the granting of a motion for failure to respond. See generally, Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).

Local Civil Rule 7.1(f)(3)(c) provides that "[i]f an opposing party fails to file papers in the manner required by Local Rule 7.1(e)(2), that failure may constitute a consent to the granting of that motion or other ruling by the court." As such, the Court has the option of granting Defendant's motion on the basis of Plaintiffs' failure to respond. The Court need not exercise its discretion to do so here, however, because the Court finds good cause to grant Defendant's motion on the merits. "For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." Fed. R. Civ. P. 41(b). Plaintiffs have been absent almost entirely from this litigation, failing to oppose the dispositive motions brought against them and failing to file a second amended complaint. Dismissal is appropriate. As such, the Court GRANTS Defendant's motion and DISMISSES this action in its entirety WITH PREJUDICE. The Clerk of Court is instructed to enter judgment accordingly and terminate the case.

IT IS SO ORDERED.

20091218

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