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Huntington v. National City Mortgage

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 6, 2010

THOMAS B. HUNTINGTON III, ET AL. PLAINTIFFS,
v.
NATIONAL CITY MORTGAGE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH PREJUDICE (DOC. 31)

Pending before the Court is Defendant Wells Fargo Bank, N.A.'s motion to dismiss the First Amended Complaint ("FAC"). (Doc. 31.) Plaintiffs have failed to oppose.*fn1

Civil Local 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." The Ninth Circuit has held that a district court may properly grant a motion to dismiss for failure to respond. See generally Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to file timely opposition papers where plaintiff had notice of the motion and ample time to respond).

Here, based on the hearing date, Plaintiffs' opposition was due on or before April 19, 2010. Plaintiffs, however, did not file an opposition and have not requested additional time to do so. Moreover, there is no evidence before the Court that Defendant's moving papers failed to reach the mailing address designated in Defendant's Proof of Service or that Plaintiffs were not aware of the pending motion. Relying on Civil Local Rule 7.1(f.3.c), the Court deems Plaintiffs' failure to oppose Defendant's motion as consent to the merits.

Furthermore, because Plaintiffs have repeatedly failed to oppose the motions to dismiss, two of which specifically challenged the FAC, the Court finds leave to amend is not warranted. Accordingly, Defendant Wells Fargo's motion to dismiss (Doc. 31) is GRANTED WITHOUT LEAVE TO AMEND, and JUDGMENT shall be entered in favor of Defendants.*fn2

IT IS SO ORDERED.


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