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John B. Wallace v. Busch Entertainment

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 25, 2011

JOHN B. WALLACE,
PLAINTIFF,
v.
BUSCH ENTERTAINMENT CORPORATION, ET AL.,
DEFENDANTS.

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

ORDER GRANTING DEFENDANTS' MOTION TO SUBSTITUTE PARTY AS DEFENDANT [DOC. 52]

On July 19, 2011, Defendant Seaworld Parks & Entertainment LLC, formerly known as Busch Entertainment Corporation, ("SWPE LLC") filed a motion to substitute SWPE LLC as defendant in this action in place of the named defendant Busch Entertainment Corporation ("BEC"). Defendant argues that SWPE LLC is the successor entity to BEC and that the substitution is appropriate under Federal Rule of Civil Procedure 25(c). To date, Plaintiff has 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." Furthermore, the Ninth Circuit has held that a district court may even properly grant a motion to dismiss for failure to respond. 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).

In this case, based on the October 11, 2011 hearing date, Plaintiff's opposition was due by September 27, 2011. However, Plaintiff did not file an opposition by this date and has 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 Plaintiff was not aware of the pending motion. Relying on Civil Local Rule 7.1(f.3.c), the Court deems Plaintiff's failure to oppose Defendant's motion as consent to granting it.

In light of the foregoing, the Court GRANTS Defendant's motion to substitute SWPE LLC as a named defendant in this case. (Doc. 52.) The Clerk of the Court shall substitute SWPE LLC as defendant in place of BEC. Furthermore, all prior submissions of Defendant in this matter shall be given the same force and effect as if filed or submitted by SWPE LLC.

IT IS SO ORDERED.

COPY TO:

HON. RUBEN B. BROOKS UNITED STATES MAGISTRATE JUDGE ALL PARTIES/COUNSEL

20111025

© 1992-2011 VersusLaw Inc.



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