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Ian Collins v. Mission Gorge Liquor

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 14, 2013

IAN COLLINS,
PLAINTIFF,
v.
MISSION GORGE LIQUOR, ET AL.,
DEFENDANTS.

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

ORDER GRANTING UNOPPOSED MOTION TO SET ASIDE DEFAULT [DOC. 43]

On December 10, 2012, the Clerk of the Court entered default against Defendants Mission Gorge Liquor and Waleed Toma. (Doc. 40.) Defendants now move to set aside the of default.*fn1 To date, Plaintiff Ian Collins has not opposed Defendants' motion.

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 even held that a district court 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 February 25, 2013 hearing date, Plaintiff's opposition was due February 11, 2013. However, Plaintiff did not file an opposition and has 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 the Proof of Service or that Plaintiff was not aware of the pending motion. Therefore, 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.

In light of the foregoing, the Court GRANTS Defendants' motion to set aside the entry of default. (Doc. 43.) Defendants shall answer or otherwise respond to the complaint by February 28, 2013.

IT IS SO ORDERED.

COPY TO: HON. DAVID H. BARTICK UNITED STATES MAGISTRATE JUDGE ALL PARTIES/COUNSEL


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