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Lanelle Kidd v. Pacific Bell Telephone Company

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 19, 2011

LANELLE KIDD,
PLAINTIFF,
v.
PACIFIC BELL TELEPHONE COMPANY,
DEFENDANT.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING MOTION TO DISMISS THE FIRST, FIFTH, SIXTH AND TENTH CAUSES OF ACTION FROM THE FIRST AMENDED COMPLAINT [doc. #4]

Defendant Pacific Bell Telephone Company's moves to dismiss the first, fifth, sixth and tenth causes of action from the first amended complaint.*fn1 The motion was set for hearing on September 6, 2011. Under the Civil Local Rules, plaintiff's opposition to defendants' motion was due on or before August 29, 2011. See CIV. L.R. 7.1.e.2. But plaintiff has not opposed the motion nor has she sought additional time in which to respond to the motion to dismiss.

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." When an opposing party receives notice under Federal Rule of Civil Procedure 5(b) and is given sufficient time to respond to a motion to dismiss, the Court may grant the motion based on failure to comply with a local rule. See generally Ghazali v. Moran, 46 F.3d 52, 52 (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, plaintiff was properly served with defendants' motion, which was filed on July 15, 2011, and therefore she had six weeks to oppose the motion. Because the motion to dismiss certain causes of action is unopposed, and relying on Civil Local Rule 7.1(f.3.c), the Court deems plaintiff's failure to oppose defendants' motion as consent to granting it.

Based on the foregoing, IT IS ORDERED defendants' motion to dismiss the first, fifth, sixth and tenth causes of action from the first amended complaint is GRANTED.

IT IS FURTHER ORDERED that defendants shall file an answer to the FAC within the time provided by the Federal Rules of Civil Procedure.

IT IS SO ORDERED.

COPY TO: HON. MITCHELL D. DEMBIN UNITED STATES MAGISTRATE JUDGE ALL PARTIES/COUNSEL


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