1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NATIONWIDE AGRIBUSINESS Case No.: 21-CV-78 JLS (AGS) INSURANCE COMPANY; and 12

D’ARRIGO BROS. CO. OF ORDER (1) GRANTING

13 CALIFORNIA, DEFENDANT’S MOTION TO

DISMISS PLAINTIFFS’ SECOND

14 Plaintiffs,

AMENDED COMPLAINT; AND (2)

15 v. DISMISSING PLAINTIFFS’

SECOND AMENDED COMPLAINT

16 YUMA COUNTY WATER USERS

WITH PREJUDICE

ASSOCIATION; and DOES 1 through 10, 17 Inclusive, (ECF No. 17) 18 Defendants. 19

20 Presently before the Court is Defendant Yuma County Water Users Association’s 21 Motion to Dismiss Plaintiffs’ Second Amended Complaint (“Mot.,” ECF No. 17). 22 Plaintiffs Nationwide Agribusiness Insurance Company and D’Arrigo Bros. Co. of 23 California did not file an opposition to the Motion. The Court took the matter under 24 submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 25 19. Having carefully reviewed Plaintiffs’ Second Amended Complaint (“SAC,” ECF No. 26 16), Defendant’s arguments, and the law, the Court GRANTS the Motion and 27 DISMISSES WITH PREJUDICE Plaintiffs’ Second Amended Complaint. 28 /// 1 The Ninth Circuit has held that, pursuant to a local rule, a district court may properly 2 grant a motion to dismiss for failure to respond to a motion. See generally Ghazali v. 3 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming dismissal for failure to file timely 4 opposition papers where plaintiff had notice of the motion and ample time to respond). 5 Here, a local rule allows the Court to grant the Motion. Civil Local Rule 7.1(f)(3)(c) 6 provides: “If an opposing party fails to file [an opposition] in the manner required by Civil 7 Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other 8 request for ruling by the court.” Unless the Court orders otherwise, pursuant to Civil Local 9 Rule 7.1(e)(2), an opposition must be filed 14 days prior to the noticed hearing. The 10 hearing for the present Motion was set for October 28, 2021, at 1:30 p.m.; thus, any 11 opposition was due on October 14, 2021. 12 In determining whether to dismiss an action, the court is required to weigh several 13 factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 14 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 15 favoring disposition of cases on their merits; and (5) the availability of less drastic 16 sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 17 (9th Cir. 1986)). The Ninth Circuit has recognized that the first and fourth factors cut in 18 opposite directions. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (first 19 factor always weighs in favor of dismissal); Hernandez v. City of El Monte, 138 F.3d 393, 20 401 (9th Cir. 1998) (fourth factor always weighs against dismissal). Therefore, the Court 21 considers the substance of factors two, three, and five. 22 Here, the second factor weighs in favor of dismissal. The Court must manage its 23 docket to ensure the efficient provision of justice. Plaintiffs had notice of the Motion yet 24 failed to file a timely opposition. Plaintiffs have not provided any excuse for their failure 25 to timely file an opposition to the present Motion. The Court cannot continue waiting for 26 Plaintiffs to take action, and a case cannot move forward when a plaintiff fails to defend 27 its case. Further, Plaintiffs are represented by an attorney and nonetheless have failed to 28 comply with the rules of procedure. See Holt v. I.R.S., 231 Fed. App’x. 557, 558 (9th Cir. 1 2007) (holding court did not abuse its discretion in dismissing action for failure to file an 2 opposition and rejecting plaintiff’s contention that the district court should have warned 3 her of the consequences of failing to file an opposition). 4 As to the third factor, the Court finds no risk of prejudice to Defendant if it dismisses 5 Defendant from this matter. In fact, Defendant has requested the dismissal. Thus, this 6 factor also weighs in favor of dismissal. As to the fifth factor, where the plaintiff does not 7 oppose dismissal, it is “unnecessary for the Court to consider less drastic alternatives.” 8 Rodriguez v. Nationstar Mortg. LLC, No. 2:16–CV–5962–ODW(SK), 2016 WL 4581402, 9 at *1 (C.D. Cal. Sept. 1, 2016). Still, the Court did employ the less drastic alternative of 10 giving notice to the Parties that no opposition had been filed. On October 21, 2021, the 11 Court filed an Order vacating the hearing on the Motion and taking the matter under 12 submission. See ECF No. 19. In that Order, the Court noted that no opposition had been 13 filed. See id. Still, Plaintiffs filed no opposition. This factor therefore weighs in favor of 14 dismissal as well. 15 The Court finds that the Ghazali factors weigh in favor of granting Defendant’s 16 unopposed Motion. The Court finds that dismissal with prejudice is appropriate in this 17 instance. The Court previously found that it cannot exercise specific or general jurisdiction 18 over Defendant. ECF No. 15 at 7, 10. In their Second Amended Complaint, Plaintiffs 19 added allegations that Defendant “get[s] its water from California and owns and operates 20 physical asserts and power plants in California and is registered to do business in California 21 with the California Secretary of State”; “regularly contracts with California businesses”; 22 and “sends several invoices regularly to D’ARRIGO, a California company.” SAC ¶¶ 6– 23 8. 24 In its order dismissing Plaintiffs’ First Amended Complaint, the Court found, and 25 Defendant did not dispute, that Defendant has purposefully directed its activities towards 26 California. ECF No. 15 at 5–6. The issue instead was “whether Plaintiffs’ claims arise out 27 of or relate to Defendant’s California-related conduct.” Id. at 6. The Court found that 28 “Plaintiffs’ claims do not ‘arise out of or relate to’ Defendant’s California contacts.” Id. at 1 || 7. Plaintiffs’ additional allegations in the Second Amended Complaint do not remedy these 2 ||issues. The Court already found that the acts alleged in Plaintiffs’ Second Amended 3 ||Complaint occurred entirely within Arizona, and Plaintiffs’ additional allegations do not 4 affect this finding. Based on Plaintiffs’ multiple amendments, it appears that there are no 5 Plaintiffs could allege that would enable the Court to exercise personal jurisdiction 6 || over Defendant for these claims. 7 Therefore, based on Plaintiffs’ failure to file an opposition, the Court’s consideration 8 the Ghazali factors, and the Court’s previous findings regarding personal jurisdiction 9 Defendant (ECF No. 15), the Court GRANTS Defendant’s Motion to Dismiss 10 || Plaintiffs’ Second Amended Complaint (ECF No. 17) and DISMISSES WITH 11 || PREJUDICE Plaintiffs’ Second Amended Complaint. The Clerk of the Court shall close 12 || the file. 13 IT IS SO ORDERED. 14 Dated: November 9, 2021 tt f Le 15 on. Janis L. Sammartino 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28