UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
December 14, 2011
VEGAS DIAMOND PROPERTIES, LLC, A NEVADA LIMITED LIABILITY COMPANY; AND JOHNSON INVESTMENTS, LLC, A NEVADA LIMITED LIABILITY COMPANY, PLAINTIFFS,
LA JOLLA BANK, FSB, A CALIFORNIA CORPORATION; ACTION FORECLOSURE SERVICES, INC., A CALIFORNIA CORPORATION; FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR LA JOLLA BANK; OMAR BENJAMIN WIGGINS, AN INDIVIDUAL; RICK HALL, AN INDIVIDUAL; MARTIN RODRIGUEZ, AN INDIVIDUAL; FRANK WARREN, AN INDIVIDUAL; R.W. LOVELESS, AN INDIVIDUAL; LYNN HEIN, AN INDIVIDUAL; AND DOES I-X, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is the Motion to Dismiss filed by Defendant Frank Warren. (ECF No. 100).
On July 14, 2011, Plaintiffs filed a First Amended Complaint. (ECF No. 94).
On August 18, 2011, Defendant Frank Warren filed a Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 100). Defendant Warren contends that Plaintiffs' claims are barred by the applicable statute of limitations; there is no contractual relationship alleged between Plaintiffs and Defendant Warren; Plaintiffs fail to allege facts to support any duty of care or disclosure between Plaintiffs and Defendant Warren; Plaintiffs fail to allege claims of fraud and deceit with the requisite particularity; and the allegations of the Complaint are insufficient to show liability for misconduct by Defendant Warren. Id.
On September 8, 2011, Plaintiffs and Defendant Warren filed Joint Motion for Continuance of the Hearing Date on Defendant Warren's Motion to Dismiss, requesting a one-month extension of time for Plaintiffs to respond to the Motion to Dismiss. (ECF No. 104). On September 12, 2011, the Court granted the parties' Joint Motion, continuing the hearing date to October 17, 2011. (ECF No. 106). To date, no response has been filed by Plaintiffs.
A district court may properly grant an unopposed motion pursuant to a local rule where the local rule permits, but does not require, the granting of a motion for failure to respond. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). Civil Local Rule 7.1 provides: "If an opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other request for ruling by the court." S.D. Cal. Civ. Local Rule 7.1.f.3.a. "Although there is ... a [public] policy favoring disposition on the merits, it is the responsibility of the moving party to move towards that disposition at a reasonable pace, and to refrain from dilatory and evasive tactics." In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994) (affirming grant of motion to dismiss for failure to prosecute); see also Steel v. City of San Diego, No. 09cv1743, 2009 WL 3715257, at *1 (S.D. Cal., Nov. 5, 2009) (dismissing action pursuant to Local Rule 7.1 for plaintiff's failure to respond to a motion to dismiss).
The Motion to Dismiss contains a proof of service stating that Plaintiffs were served with the Motion to Dismiss on August 18, 2011. (ECF No. 100-4). Pursuant to the September 12, 2011 Order, the hearing for the Motion to Dismiss was noticed for October 17, 2011. (ECF No. 106). Civil Local Rule 7.1 provides: "each party opposing a motion ... must file that opposition ... with the clerk ... not later than fourteen (14) calendar days prior to the noticed hearing." S.D. Cal. Civ. Local Rule 7.1(e)(2). As of the date of this Order, Plaintiffs have failed to file an opposition. The Court concludes that "the public's interest in expeditious resolution of litigation," "the court's need to manage its docket," and "the risk of prejudice to the defendant" weigh in favor of granting the Motion to Dismiss for failure to file an opposition. Ghazali, 46 F.3d at 53.
IT IS HEREBY ORDERED that the Motion to Dismiss is GRANTED. (ECF No. 100). The Complaint is DISMISSED without prejudice as to Defendant Frank Warren.
United States District Judge WILLIAM Q. HAYES
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