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Jose Diaz and Teresa Diaz v. Jp Morgan Chase Bank National

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 16, 2012

JOSE DIAZ AND TERESA DIAZ,
PLAINTIFFS,
v.
JP MORGAN CHASE BANK NATIONAL, ET AL.,
DEFENDANTS.

ORDER GRANTING JPMORGAN CHASE BANK, N.A.'S MOTION TO DISMISS [doc. #5]

On March 5, 2012, defendant JPMorgan Chase Bank N.A. filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(1). See CIV. L.R. 7.1.e.2. The motion is set for hearing on April 23, 2012. Under the Civil Local Rules, plaintiffs' opposition to defendant's motion was due on or before April 9, 2012. See CIV. L.R. 7.1.e.2. But plaintiffs have not opposed the motion nor have they 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, plaintiffs were properly served with defendant's motion, which was filed on March 5, 2012, and therefore they had five weeks to oppose the motion. Because the motion to dismiss is unopposed, and relying on Civil Local Rule 7.1(f.3.c), the Court deems plaintiffs' failure to oppose defendant's motion as consent to granting it.

The Court notes that the only other defendant that has been served, the FDIC, was dismissed on January 3, 2012. [doc. #4]. Because the time for service of process on the other named defendants has past and no extension of time for service has been requested, the Court will dismiss the Complaint in its entirety.

Based on the foregoing, IT IS ORDERED:

1. Defendant JPMorgan Chase Bank N.A.'s motion to dismiss plaintiffs' complaint is GRANTED;

2. The unserved named defendants are DISMISSED;

3. The Clerk of the Court is directed to CLOSE this case.

IT IS SO ORDERED.

COPY TO:

HON. BARBARA L. MAJOR UNITED STATES MAGISTRATE JUDGE

M. James Lorenz United States District Court Judge

ALL PARTIES/COUNSEL

20120416

© 1992-2012 VersusLaw Inc.



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