Case 3:11-cv-00814-MMA-WMC Document 10 Filed 06/20/11 Page 1 of 3
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
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`THOMAS A. MOORE,
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`vs.
`
`Plaintiff,
`
`CASE NO. 11 CV 0814 MMA (WMC)
`ORDER GRANTING
`DEFENDANT’S UNOPPOSED
`MOTION TO DISMISS
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`UNITED STATES OF AMERICA,
`Defendant.
`
`[Doc. No. 7]
`
`On April 18, 2011, the United States of America removed pro se Plaintiff Thomas Moore’s
`small claims complaint (also referred to as “Plaintiff’s Claim and ORDER to Go to Small Claims
`Court”) originally filed in the San Diego Superior Court, to this Court. [Doc. No. 1.] In his
`complaint, Plaintiff seeks damages for pain and suffering he allegedly endured when Abigail
`Kennedy purportedly disclosed Plaintiff’s medical records to others without his permission. [Doc.
`No. 1-1.] Plaintiff further alleges personal injury as a result of his pre-marriage counseling with
`Kennedy because she lacked the qualifications to treat Plaintiff and caused his relationship to end.
`[Id.]
`
`On April 19, 2011, the Court ordered the United States of America be substituted as the
`named defendant, in place and stead of individual defendant Abigail Kennedy. [Doc. No. 5.] A
`copy of the order was sent to Plaintiff at the “220 West C Street” address provided in his
`complaint, but the mail was returned as undeliverable. [Doc. No. 6.]
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`Case 3:11-cv-00814-MMA-WMC Document 10 Filed 06/20/11 Page 2 of 3
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`On May 9, 2011, Defendant United States moved to dismiss Plaintiff’s complaint on the
`grounds that Plaintiff failed to exhaust his administrative remedies, and the United States is
`immune from liability for defamation claims. [Doc. No. 7-1.] Defendant served Plaintiff with
`notice of the removal and its motion to dismiss on May 9, 2011, at 1037 4th Avenue, Room 606,
`San Diego, California 92101. [Doc. Nos. 6, 8.] Defendant’s motion was set for hearing on June
`21, 2011. Plaintiff did not file an opposition, which would have been due on June 7, 2011. See
`Civ. L.R. 7.1(e)(2). On June 17, 2011, the Court in its discretion determined the matter suitable
`for a decision on the papers and without oral argument, and took the matter under submission
`pursuant to Civil Local Rule 7.1(d)(1).
`The Ninth Circuit has held a district court may properly grant an unopposed motion to
`dismiss pursuant to a local rule where the local rule permits, but does not require, the granting of a
`motion for failure to respond. See generally, Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).
`Local Civil Rule 7.1(f)(3)(c) provides that “[i]f an opposing party fails to file papers in the manner
`required by Local Rule 7.1(e)(2), that failure may constitute a consent to the granting of that
`motion or other ruling by the court.” As such, the Court has the option of granting Defendant’s
`motion on the basis of Plaintiff’s failure to respond, and it chooses to do so.
`Generally, public policy favors disposition of cases on their merits. See, e.g., Hernandez v.
`City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). However, a case cannot move forward
`toward resolution on the merits when the plaintiff fails to defend his case against a motion to
`dismiss. Thus, this policy lends little support to a party whose responsibility it is to move a case
`toward disposition on the merits but whose conduct impedes or completely prevents progress in
`that direction. See In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994). In addition, management of
`this Court’s docket is of vital significance to the proper and timely resolution of matters before it.
`Consequently, the Court finds dismissal pursuant to Civil Local Rule 7.1(f)(3)(c) serves to
`facilitate the management of its docket in light of the fact that the complaint fails to allege Plaintiff
`exhausted his administrative remedies, and appears to state a claim for defamation that is
`potentially barred on immunity grounds.
`/ / /
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`Case 3:11-cv-00814-MMA-WMC Document 10 Filed 06/20/11 Page 3 of 3
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`Defendant seeks dismissal of the complaint without leave to amend on the ground that
`amendment would be futile. However, the Court finds final dismissal at this time is premature.
`For the reasons set forth above, the Court GRANTS Defendant’s motion to dismiss and
`DISMISSES WITHOUT PREJUDICE Plaintiff’s complaint. IT IS FURTHER ORDERED
`that the Clerk of Court shall mail a copy of this order to Plaintiff at 1037 4th Avenue, Room 606,
`San Diego, California 92101, and update the docket to reflect this new address for Plaintiff.
`IT IS SO ORDERED.
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`DATED: June 20, 2011
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`Hon. Michael M. Anello
`United States District Judge
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