United States District Court, D. Arizona
MICHAEL T. LIBURDI UNITED STATES DISTRICT JUDGE.
before the Court is the Motion to Dismiss (Doc. 9) filed by
Defendant Suzuki Motor of America Incorporated
(“SMAI”). Plaintiff has not responded. For the
following reasons, the motion to dismiss Plaintiff’s
claims against SMAI with prejudice is granted.
SMAI filed its Motion to Dismiss on April 12, 2019 (Doc. 9).
Plaintiff received the Motion to Dismiss and moved for two
extensions of time to file his response (Doc. 10, Doc. 12).
The Court granted Plaintiff’s Motions for Extension of
Time. (Doc. 11, Doc. 13). Plaintiff’s response to
SMAI’s Motion to Dismiss was due June 7, 2019 (Doc.
13). Plaintiff did not file a response and the time to do so
has long since passed.
LRCiv 7.2(i), if a party “does not serve and file the
required answering memoranda, . . . such non-compliance may
be deemed a consent to the denial or granting of the motion
and the Court may dispose of the motion summarily.”
LRCiv 7.2(i). Failure to follow a district court’s
local rules is proper ground for dismissal. Ghazali v.
Moran, 46 F.3d 52, 53 (9th Cir. 1995). Before the Court
considers whether to grant dismissal for failure to comply
with LRCiv 7.2(i), however, it “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., citing Henderson
v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). The
first two factors favor dismissal as a sanction in most
cases, while the fourth factor cuts against it. Wanderer
v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990).
Therefore, “[t]he key factors are prejudice and the
availability of lesser sanctions.” Id.
the Ghazali factors, the Court finds that dismissal
with prejudice is the appropriate sanction. As noted in
Wanderer, the first two Ghazali factors-
expeditious resolution and docket management-generally favor
dismissal. Wanderer, 910 F.2d at 656. This case is
no different. In Ghazali, the Ninth Circuit Court of
Appeals upheld summary dismissal of a 42 U.S.C. § 1983
action where the pro se plaintiff violated a Nevada
district court local rule by failing to respond to the
defendant’s motion to dismiss. Ghazali, 46
F.3d at 53. The Court of Appeals upheld the district
court’s dismissal order because it reasoned that the
pro se plaintiff was given notice of the motion and
had ample time to respond. Id. at 54.
(unlike the plaintiff in Ghazali), Plaintiff is
represented by counsel. Plaintiff was given ample time to
respond to the Motion to Dismiss, including two filing
extensions, but did not respond or provide any reasons for
his failure to do so. Because Plaintiff failed to respond to
a dispositive motion, Ghazali factors one and two
weigh especially in favor of dismissal.
third Ghazali factor-risk of prejudice to
defendants-also weighs in favor of dismissal. In determining
whether a defendant has been prejudiced, the Court examines
“whether the plaintiff’s actions impair the
defendant’s ability to go trial or threaten to
interfere with the rightful decision on the case.”
Malone v. U.S. Postal Service, 833 F.2d 128, 131
(9th Cir. 1987). A presumption of prejudice arises when a
plaintiff unreasonably delays the prosecution of an action.
See Anderson v. Air West, Inc., 542 F.2d 522, 524
(9th Cir. 1976). In this case, Plaintiff’s unreasonable
delay raises a presumption of prejudice to Defendant SMAI.
This factor, therefore, favors dismissal.
the fourth Ghazali factor, which is the public
policy favoring disposition on the merits, weighs against
dismissal-it is no more compelling here than it was in
Ghazali. See Pagtalunan v. Galaza, 291 F.3d 639, 643
(9th Cir. 2002). Accordingly, this factor weighs only
slightly against dismissal.
the final Ghazali factor requires the Court to
consider the availability of less drastic sanctions.
Defendant SMAI has moved for the Court to dismiss with
prejudice Plaintiff’s claims against SMAI. The Court
could grant the motion without prejudice as a less drastic
sanction. But here, (1) Plaintiff, who is represented by
counsel, was aware of the response deadline and had ample
time to contact the court, and (2) Plaintiff, despite being
granted two time extensions, failed to file a responsive
brief. Therefore, weighing this last factor, the Court finds
that dismissal with prejudice is the most acceptable sanction
in this case.
Plaintiff failed to respond to Defendant SMAI’s Motion
to Dismiss, the Court will construe this as consent to
granting the motion.
light of the foregoing, IT IS HEREBY ORDERED
GRANTING Defendant SMAI’s Motion to Dismiss
(Doc. 9) with prejudice Plaintiffs claims against SMAI.
IS FURTHER ORDERED that Plaintiff shall show cause
in writing no later than October 9, 2019, why the
Court should not dismiss the action without prejudice against
Defendant C&W Motors Incorporated, d/b/a Ridenow
Powersports Goodyear, for Plaintiffs failure to serve
Defendant C&W ...