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Felix R. Maristela, et al v. Paramount Realty and Financial

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 31, 2011

FELIX R. MARISTELA, ET AL.,
PLAINTIFFS,
v.
PARAMOUNT REALTY AND FINANCIAL, ET AL., DEFENDANTS.

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

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITH PREJUDICE [DOC. 12]

On January 5, 2011, Defendants PNC Bank and PNC Financial filed a motion to dismiss this action with prejudice based on Plaintiffs Felix R. Maristela and Salmone E. Maristela's failure to prosecute and failure to comply with this Court's July 19, 2010 order. Plaintiffs have not opposed.

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).

In this case, based on the February 7, 2011 hearing date, Plaintiffs' opposition was due on or before January 24, 2011. 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 Defendants' moving papers failed to reach the mailing address designated in Defendants' 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 Defendants' motion as consent to granting the motion.

In light of the foregoing, the Court GRANTS Defendants' motion to dismiss this action WITH PREJUDICE. (Doc. 12.)

IT IS SO ORDERED.

20110131

© 1992-2011 VersusLaw Inc.



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