1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RYDER GEAR, LLC, et al., Case No.: 21-CV-1551 W (AGS)

12 Plaintiffs,

ORDER GRANTING DEFENDANT’S

13 v. MOTION TO DISMISS [DOC. 5]

WITHOUT LEAVE TO AMEND

14 FORWARD AIR SERVICES, LLC, 15 Defendant. 16 17 18 Pending before the Court is Defendant Forward Air Services, LLC’s motion to 19 dismiss Counts 2 through 7 in the Complaint and one of the named Plaintiffs under 20 Federal Rule of Civil Procedure 12(b)(6). Count 1 in the Complaint asserts a violation of 21 the Carmack Amendment under 49 U.S.C. § 14706. (See Compl. [Doc. 1].) Counts 2 22 through 7 assert state-based violations. (See id.) Plaintiffs are Ryder Gear LLC 23 (“Ryder”) and Anthony Robert Bracalente, individually and as Chief Executive Officer of 24 Ryder. (Id. ¶¶ 1–3.) 25 Defendant argues the six state-based counts are preempted under the Carmack 26 Amendment. (MTD P&A [Doc. 5-1] 4:1–7:17.) Defendant also argues Plaintiff 27 Bracalente lacks standing because the cargo at issue belonged to Ryder, not him. (Id. 28 7:18–9:15.) 1 Civil Local Rule 7.1(f.3.c) provides that “[i]f an opposing party fails to file papers 2 the manner required by Local Rule 7.1(e)(2), that failure may constitute a consent to 3 || the granting of that motion or other ruling by the court.” The Ninth Circuit has held that 4 district court may properly grant a motion to dismiss for failure to respond. See 5 || Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming dismissal for 6 || failure to file timely opposition papers where plaintiff had notice of the motion and ample 7 || time to respond). 8 Here, based on the hearing date, Plaintiffs’ opposition was due on or before 9 || October 25, 2021. Plaintiffs, however, did not file an opposition and have not requested 10 || additional time to do so. Moreover, there is no evidence before the Court that 11 || Defendant’s moving papers failed to reach the mailing address designated in Defendant’s 12 || Proof of Service or that Plaintiffs were not aware of the pending motion. Relying on 13 || Civil Local Rule 7.1(£.3.c), the Court deems Plaintiffs’ failure to oppose Defendant’s 14 || motion as consent to the merits. 15 Based on the foregoing, the Court GRANTS Defendant’s motion to dismiss [Doc. 16 ||5] and ORDERS as follows: 17 e Counts 2 through 7 are DISMISSED WITHOUT LEAVE TO AMEND. 18 e Plaintiff Anthony Robert Bracalente is DISMISSED WITH PREJUDICE. 19 IT IS SO ORDERED. 20 ||Dated: March 29, 2022 \ 22 Hn. 7 omas J. Whelan 73 United States District Judge 24 25 26 27 28