1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 OUTLAW LABORATORY, LP, a Case No.: 3:19-cv-01229-GPC-BGS Texas limited partnership, 12

ORDER:

Plaintiff, 13 v. (1) GRANTING DEFENDANT’S 14

MOTION TO DISMISS WITHOUT

TREPCO IMPORTS & DISTRIBUTION,

15 PREJUDICE; AND

LTD. D/B/A TREPCO WEST D/B/A

16 TREPCO SALES COMP ANY D/B/A (2) DENYING PLAINTIFF’S KENNEDY WHOLESALE, a Michigan 17 MOTION FOR A PRELIMINARY Corporation, and DOES 1 through 100,

INJUNCTION.

18 inclusive,

19 Defendant. ECF Nos. 5, 7. 20 21 Before the Court are Plaintiff’s motion for a preliminary injunction and 22 Defendant’s motion to dismiss the complaint. In light of Plaintiff's dilatory conduct, the 23 Court grants Defendant’s motion to dismiss. Consequently, the Court also finds 24 Plaintiff’s motion for a preliminary injunction is denied as moot. Moreover, in so far as 25 this matter is determined on procedural grounds and the merits are not considered, any 26 request for judicial notice is also moot. 27 1 I. Procedural History 2 On July 1, 2019, Plaintiff Outlaw Laboratory (“Plaintiff” or “Outlaw”) filed a one- 3 count complaint against Defendants Trepco Imports & Distribution (“Defendant” or 4 “Trepco”), operating under several d/b/a’s, and Does 1-100, alleging that Defendants had 5 violated the Lanham Act, 15 U.S.C. § 1051 et seq., by distributing misbranded male 6 enhancement pills. ECF No. 1. On August 12, 2019, Defendant filed a motion to dismiss 7 Plaintiff's complaint arguing (1) that Plaintiff's claim was barred by res judicata given the 8 dismissal of another Lanham Act claim in a prior Nevada suit between the same parties 9 and (2) that Plaintiff had failed to state a claim for which relief could be granted. ECF 10 No. 5. Then, on August 15, 2019, Plaintiff filed a motion for preliminary injunction, 11 seeking a court order enjoining Defendant from advertising, marketing, distributing, and 12 selling certain male enhancement products. ECF No. 7. 13 On August 22, 2019, the Court noticed both motions for a hearing to be held on 14 November 1, 2019. ECF No. 8. The Court ordered that opposition briefs be filed on or 15 before September 12, 2019 and that any replies be filed on or before September 19, 2019. 16 Id. Defendant filed a timely brief opposing Plaintiff's motion for preliminary injunction. 17 ECF No. 9. To date, Plaintiff has yet to file an opposition to Defendant’s motion to 18 dismiss. Neither party filed a reply. 19 II. The Court Grants Trepco’s Motion to Dismiss Pursuant to Local Rule 7.1.2. 20 Civil Local Rue 7.1.e.2 requires a party opposing a motion to file an opposition or 21 statement of non-opposition within fourteen calendar dates of the noticed hearing (or 22 when otherwise scheduled by the Court). CivLR 7.1.e.2. Failure to comply with this rule 23 “may constitute a consent to the granting of a motion.” CivLR 7.1.f.3.c. Local Rules have 24 the force of law, United States v. Hvass, 355 U.S. 570, 574–75 (1958), and courts have 25 discretion to dismiss a case for failure to comply with them. Ghazali v. Moran, 36 F.3d 26 26 52, 53 (9th Cir. 1995). 27 1 Before dismissing an action, “the district court is required to weigh several factors: 2 "(l) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 3 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 4 favoring disposition of cases of their merits; and (5) the availability of less drastic 5 sanctions.” Id. (quoting Henderson v. Duncan, 779 F.2d 1421 , 1423 (9th Cir.1986)). 6 Here, the Court finds that these factors weigh in favor of dismissal. First, with 7 respect to the first two factors, “the record indicates that [Plaintiff] received notice,” 8 Ghazali, 46 F.3d at 54, as Defendant’s motion includes a signed certificate of service. 9 ECF No. 5 at 3. Also, as Plaintiff was given one month to file an opposition, Plaintiff had 10 “ample time to respond to the motion to dismiss.” Id. Courts of this district have recently 11 dismissed cases where plaintiffs received the same or less time to brief a response. See, 12 e.g., Garrison v. Ringgold, No. 19-CV-244-GPC-RBB, 2019 WL 4015568, at *1–2 (S.D. 13 Cal. Aug. 26,2019) (briefing period of two weeks in response to an anti-SLAPP motion); 14 Turner v. Berryhill, No. l 7-CV-1130-CAB-BGS, 2018 WL 501010, at* 1 (S.D. Cal. Jan. 15 19, 2018) (briefing period of four weeks in response to a motion to dismiss). 16 A dismissal here is also not a “drastic sanction” nor is the “the risk of prejudice to 17 the” Plaintiff high as a meritorious complaint may be re-filed with the Court’s 18 permission. Fed. R. Civ. Pro. l 5(a)(2). Lastly, while disposing of a case on its merits is 19 appropriate in some situations, here Plaintiff’s failure to file a response evinces a consent 20 to dismiss. CivLR 7.l.e.2; Larson-Valentine v. Travelers Commercial Ins. Co., No. 19- 21 CV-1209-GPC-AGS, 2019 WL 3766562, at* 1 (S.D. Cal. Aug. 9, 2019) (“Plaintiff’s 22 failure to oppose constitutes a waiver or abandonment of the issues raised in Defendant’s 23 motion”) (citations omitted). Thus, the court finds that analyzing the merits of 24 Defendant’s motion to dismiss would be superfluous. 25 In sum, the Court concludes that a dismissal of Plaintiff’s complaint is appropriate 26 here pursuant Ghazali and GRANTS Defendant's motion to dismiss on that basis. 27 1 III. The Court Denies Outlaw’s Motion for a Preliminary Injunction as Moot. 2 Under Article III of the United States Constitution, federal courts may only 3 adjudicate cases or controversies, i.e., matters containing “actual and concrete disputes, 4 the resolutions of which have direct consequences on the parties involved.” Genesis 5 Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013). The case-or-controversy 6 requirement is jurisdictional. Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008); 7 Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d 1012, 1015 (9th Cir.1990). Hence, 8 in the absence of a genuine “case or controversy,” the Court cannot rule on the matter and 9 the case is said to be “moot.” Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 715 10 (9th Cir. 2011) (citations and quotations omitted). Similarly, a party cannot seek 11 injunctive relief without first alleging a case or controversy in the operative pleading, the 12 complaint. Stewart v. US INS, 762 F.2d 193, 198 (2d Cir. 1985) (“Only after an action 13 has been commenced can preliminary injunctive relief be obtained.”); Pac. Radiation 14 Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631 , 633 (9th Cir. 2015) (“A court’s 15 equitable power lies only over the merits of the case or controversy before it. When a 16 plaintiff seeks injunctive relief based on claims not pied in the complaint, the court does 17 not have the authority to issue an injunction.”). 18 Here, the Court has dismissed Plaintiff’s complaint for failure to prosecute its case 19 pursuant to Local Rule Civil Local Rue 7.1.e.2. There is thus “no case or controversy 20 pending before the Court, and the Court does not have subject matter jurisdiction” to hear 21 Plaintiff’s motion. Silveira v. CoreCivic, No. 519-CV-00629-FMO-MAA, 2019 WL 22 2932645, at *2 (C.D. Cal. May 23, 2019). Consequently, as has been the longstanding 23 practice of this District, the Court DENIES Plaintiff’s request for a preliminary 24 injunction as moot. See, e.g., Raymond J Lucia Companies, Inc. v. U.S. Sec. & Exch. 25 Comm’n, No. l 8-CV-2692-DMS-JLB, 2019 WL 3997332, at *3 (S.D. Cal. Aug. 21, 26 2019) (dismissing the complaint on a motion to dismiss and then denying plaintiff’s 27 1 || motion for preliminary injunction as moot); Grant v. Bostwick, No. 1 5-CV-874-WQH- 2 BLM, 2015 WL 6442303, at *5 (S.D. Cal. Oct. 22, 2015) (same); Stewart v. St. Vincent 3 Paul, Inc., No. 12-CV-642-BEN-KSC, 2012 WL 3205576, at *3 (S.D. Cal. Aug. 6, 4 ||2012) (same); Hinrichs v. Olsen, et al, No. 06-CV-2547-JAH-AJB, 2007 WL 9778028, at 5 || *3 (S.D. Cal. Apr. 2, 2007) (same); Do-Nguyen v. Clinton, 100 F. Supp. 2d 1241, 1248 6 ||(S.D. Cal. 2000) (same); Council for Life Coal. v. Reno, 856 F. Supp. 1422, 1432 (S.D. 7 7 ||Cal. 1994) (same). 8 Conclusion 9 For the foregoing reasons, the Court ORDERS that: 10 1) Defendant’s motion to dismiss the complaint is GRANTED; 11 2) Plaintiff's motion for a preliminary injunction is DENIED as moot; and 12 3) Any requests for judicial notice are DENIED as moot. 13 IT IS SO ORDERED. 14 Dated: October 23, 2019 <=

16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28