United States District Court, S.D. California
ORDER: (1) GRANTING DEFENDANT'S MOTION TO DISMISS
WITHOUT PREJUDICE; AND (2) DENYING PLAINTIFF'S MOTION FOR
A PRELIMINARY INJUNCTION. ECF Nos. 5, 7.
Gonzalo P. Curiel, United States District Judge.
the Court are Plaintiff's motion for a preliminary
injunction and Defendant's motion to dismiss the
complaint. In light of Plaintiff's dilatory conduct, the
Court grants Defendant's motion to dismiss. Consequently,
the Court also finds Plaintiff's motion for a preliminary
injunction is denied as moot. Moreover, in so far as this
matter is determined on procedural grounds and the merits are
not considered, any request for judicial notice is also moot.
1, 2019, Plaintiff Outlaw Laboratory (“Plaintiff”
or “Outlaw”) filed a one-count complaint against
Defendants Trepco Imports & Distribution
(“Defendant” or “Trepco”), operating
under several d/b/a's, and Does 1-100, alleging that
Defendants had violated the Lanham Act, 15 U.S.C. § 1051
et seq., by distributing misbranded male enhancement pills.
ECF No. 1. On August 12, 2019, Defendant filed a motion to
dismiss Plaintiff's complaint arguing (1) that
Plaintiff's claim was barred by res judicata
given the dismissal of another Lanham Act claim in a prior
Nevada suit between the same parties and (2) that Plaintiff
had failed to state a claim for which relief could be
granted. ECF No. 5. Then, on August 15, 2019, Plaintiff filed
a motion for preliminary injunction, seeking a court order
enjoining Defendant from advertising, marketing,
distributing, and selling certain male enhancement products.
ECF No. 7.
August 22, 2019, the Court noticed both motions for a hearing
to be held on November 1, 2019. ECF No. 8. The Court ordered
that opposition briefs be filed on or before September 12,
2019 and that any replies be filed on or before September 19,
2019. Id. Defendant filed a timely brief opposing
Plaintiff's motion for preliminary injunction. ECF No. 9.
To date, Plaintiff has yet to file an opposition to
Defendant's motion to dismiss. Neither party filed a
The Court Grants Trepco's Motion to Dismiss Pursuant to
Local Rule 7.1.2.
Local Rue 7.1.e.2 requires a party opposing a motion to file
an opposition or statement of non-opposition within fourteen
calendar dates of the noticed hearing (or when otherwise
scheduled by the Court). CivLR 7.1.e.2. Failure to comply
with this rule “may constitute a consent to the
granting of a motion.” CivLR 7.1.f.3.c. Local Rules
have the force of law, United States v. Hvass, 355
U.S. 570, 574-75 (1958), and courts have discretion to
dismiss a case for failure to comply with them. Ghazali
v. Moran, 36 F.3d 26 52, 53 (9th Cir. 1995).
dismissing an action, “the district court is required
to weigh several factors: "(1) the public's interest
in expeditious resolution of litigation; (2) the court's
need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of
cases of their merits; and (5) the availability of less
drastic sanctions.” Id. (quoting Henderson
v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)).
the Court finds that these factors weigh in favor of
dismissal. First, with respect to the first two factors,
“the record indicates that [Plaintiff] received notice,
” Ghazali, 46 F.3d at 54, as Defendant's
motion includes a signed certificate of service. ECF No. 5 at
3. Also, as Plaintiff was given one month to file an
opposition, Plaintiff had “ample time to respond to the
motion to dismiss.” Id. Courts of this
district have recently dismissed cases where plaintiffs
received the same or less time to brief a response. See,
e.g., Garrison v. Ringgold, No. 19-CV-244-GPC-RBB, 2019
WL 4015568, at *1-2 (S.D. Cal. Aug. 26, 2019) (briefing
period of two weeks in response to an anti-SLAPP motion);
Turner v. Berryhill, No. l 7-CV-1130-CAB-BGS, 2018
WL 501010, at* 1 (S.D. Cal. Jan. 19, 2018) (briefing period
of four weeks in response to a motion to dismiss).
dismissal here is also not a “drastic sanction”
nor is the “the risk of prejudice to the”
Plaintiff high as a meritorious complaint may be re-filed
with the Court's permission. Fed. R. Civ. Pro. l 5(a)(2).
Lastly, while disposing of a case on its merits is
appropriate in some situations, here Plaintiff's failure
to file a response evinces a consent to dismiss. CivLR
7.l.e.2; Larson-Valentine v. Travelers Commercial Ins.
Co., No. 19-CV-1209-GPC-AGS, 2019 WL 3766562, at* 1
(S.D. Cal. Aug. 9, 2019) (“Plaintiff's failure to
oppose constitutes a waiver or abandonment of the issues
raised in Defendant's motion”) (citations omitted).
Thus, the court finds that analyzing the merits of
Defendant's motion to dismiss would be superfluous.
the Court concludes that a dismissal of Plaintiff's
complaint is appropriate here pursuant Ghazali and
GRANTS Defendant's motion to dismiss on
The Court Denies Outlaw's Motion for a Preliminary
Injunction as Moot.
Article III of the United States Constitution, federal courts
may only adjudicate cases or controversies, i.e., matters
containing “actual and concrete disputes, the
resolutions of which have direct consequences on the parties
involved.” Genesis Healthcare Corp. v.
Symczyk, 569 U.S. 66, 71 (2013). The case-or-controversy
requirement is jurisdictional. Feldman v. Bomar, 518
F.3d 637, 642 (9th Cir. 2008); Headwaters, Inc. v. Bureau
of Land Mgmt., 893 F.2d 1012, 1015 (9th Cir.1990).
Hence, in the absence of a genuine “case or
controversy, ” the Court cannot rule on the matter and
the case is said to be “moot.” Pinnacle
Armor, Inc. v. United States, 648 F.3d 708, 715 (9th
Cir. 2011) (citations and quotations omitted). Similarly, a
party cannot seek injunctive relief without first alleging a
case or controversy in the operative pleading, the complaint.
Stewart v. U.S. INS, 762 F.2d 193, 198 (2d Cir.
1985) (“Only after an action has been commenced can
preliminary injunctive relief be obtained.”); Pac.
Radiation Oncology, LLC v. Queen's Med. Ctr., 810
F.3d 631, 633 (9th Cir. 2015) (“A court's equitable
power lies only over the merits of the case or controversy
before it. When a plaintiff seeks injunctive relief based on
claims not pied in the complaint, the court does not have the
authority to issue an injunction.”).
the Court has dismissed Plaintiff's complaint for failure
to prosecute its case pursuant to Local Rule Civil Local Rue
7.1.e.2. There is thus “no case or controversy pending
before the Court, and the Court does not have subject matter
jurisdiction” to hear Plaintiff's motion.
Silveira v. CoreCivic, No. 519-CV-00629-FMO-MAA,
2019 WL 2932645, at *2 (C.D. Cal. May 23, 2019).
Consequently, as has been the longstanding practice of this
District, the Court DENIES Plaintiff's
request for a preliminary injunction as moot. See,
e.g., Raymond J Lucia Companies, Inc. v. U.S. Sec.
& Exch. Comm'n, No. l 8-CV-2692-DMS-JLB, 2019 WL
3997332, at *3 (S.D. Cal. Aug. 21, 2019) (dismissing the
complaint on a motion to dismiss and then denying
plaintiff's motion for preliminary injunction as moot);
Grant v. Bostwick, No. l 5-CV-874-WQH-BLM, 2015 WL
6442303, at *5 (S.D. Cal. Oct. 22, 2015) (same); Stewart
v. St. Vincent de Paul, Inc., No. 12-CV-642-BEN-KSC,
2012 WL 3205576, at *3 (S.D. Cal. Aug. 6, 2012) ...