United States District Court, C.D. California
ORDER GRANTING PLAINTIFF'S MOTION TO MODIFY THE
SCHEDULING ORDER AND FOR LEAVE TO FILE AMENDED COMPLAINT [39,
D. WRIGHT, II UNITED STATES DISTRICT JUDGE.
Party Plaintiff Mile High Equipment, LLC (“Mile
High”) moves to modify the Scheduling Order and moves
for leave to file a First Amended Third-Party Complaint
(“FATPC”) (collectively, “Motions”).
(Mot. to Modify Scheduling Order (“Mot. to
Modify”) 1, ECF No. 40; Mot. for Leave to File First
Am. Third-Party Compl. (“Mot. to file FATPC”) 1,
ECF No. 39.) For the reasons that follow, the Court
GRANTS Mile High's
September 28, 2018, Plaintiff Gonzalez-Chavez filed suit in
Los Angeles County Superior Court against Costco Wholesale
Corp. and other entities for her injuries arising from a slip
and fall on October 24, 2016. (Notice of Removal Ex. A
(“Compl.”) 1-5, ECF No. 1-2.) Plaintiff alleged
that Mile High “manufactured, installed, distributed,
supplied and serviced the ice making equipment . . . which
was attached to the top of the soda dispensing
machine.” (Mot. to file FATPC 1; Compl. 5.)
March 11, 2019, Mile High filed a Third-Party Complaint
against Smith and Greene Company for indemnity and
contribution. (See Third-Party Compl.
(“TPC”), ECF No. 18.) Mile High discovered that
Smith and Green Company hired IMS Refrigeration, Inc.,
Norm's Refrigeration, LLC, and McGovern and Sons U S C E
S LLC, but Smith and Green Company, itself, did not install,
maintain, or repair the subject machines. (Mot. to Am 1.) On
August 26, 2019, after considering the parties' joint
stipulation, the Court issued an order dismissing Smith and
Green Company as a third-party Defendant. (See
Minute Order, ECF No. 38.) At present, Mile High files the
Motions to add the entities that installed the machines at
issue. (Mot. to Am 1.)
Scheduling and Case Management Order (“Scheduling
Order”) governing this case, the Court set July 22,
2019, as the deadline to hear motions to amend the pleadings
or add parties; January 6, 2020, as fact discovery cutoff;
and trial to commence on June 2, 2020. (Scheduling Order 24,
ECF No. 31.) On September 9, 2019, Mile High moved to modify
the Scheduling Order and file a FATPC, and set the motion for
hearing on October 21, 2019. (See Mot. to Modify.)
Thus, pursuant to Local Rule 7-9, Hernandez's oppositions
were due no later than September 30, 2019. See C.D.
Cal. L.R. 7-9 (requiring oppositions to be filed no later
than twenty-one days before the motion hearing). However, to
date, no opposition has been filed.
PLAINTIFF'S FAILURE TO OPPOSE WARRANTS DISMISSAL
District of California Local Rule 7-12 provides that the
Court “may decline to consider any memorandum or other
document not filed within the deadline set by order or local
rule.” C.D. Cal. L.R. 7-12 (“The failure to file
[a responsive document], or the failure to file it within the
deadline, may be deemed consent to the granting or denial of
the motion. . . .”); Ghazali v. Moran, 46 F.3d
52, 53 (9th Cir. 1995) (affirming dismissal on the basis of
unopposed motion pursuant to local rule).
to dismissing an action pursuant to a local rule, courts must
weigh: “(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 o[n] their
merits; and (5) the availability of less drastic
sanctions.” Ghazali, 46 F.3d at 53 (quoting
Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
1986)). “Explicit findings with respect to these
factors are not required.” Ismail v. Cty. of
Orange, SACV 10-00901 VBF (AJW), 2012 WL 12964893, at *1
(C.D. Cal. Nov. 7, 2012) (citing Henderson, 779 F.2d
at 1424; accord, Malone v. U.S. Postal
Serv., 833 F.2d 128, 129 (9th Cir. 1987), cert.
denied, 488 U.S. 819 (1988)). In Ghazali, the
Ninth Circuit found these factors satisfied where the
plaintiff received notice of the motion, had “ample
opportunity to respond, ” yet failed to do so. See
Ghazali, 46 F.3d at 54.
parties received notice of the motions and had ample
opportunity to respond; however, they failed to oppose or
otherwise respond. Parties are represented by counsel in this
matter and their attorneys are registered CM/ECF user who
receives notice of electronic filings in this action. As
such, the Court construes failure to respond to Mile
High's motions as consent to the Court granting them.
pursuant to Local Rule 7-12 and Ghazali, the Court
GRANTS Mile High's motions.
foregoing reasons, the Court GRANTS Mile
High's motion to amend the Scheduling Order. The deadline
to add a party to a complaint is extended through
November 6, 2019. No other dates