Motion to Dismiss May Be Granted without Reaching Merits If It Is Unopposed — The Failure to Respond Is Viewed as a Concession or Dismissal Is Deemed an Appropriate Sanction for Failure to Respond

Blount v. Northrup Grumman Info. Tech. Overseas, Inc., 2014 U.S. Dist. LEXIS 146407 (E.D. Va. Oct. 14, 2014): 

Before considering the merits of this motion, this Court must first address Blount's untimely filing. Blount's opposition was approximately one month late. At no point did Blount move for an extension of time. See [*8]  Fed. R. Civ. P. 6(b)(1)(B). Furthermore, she filed her opposition after the Court advised both parties that it was taking the case on the papers, a decision motivated by the lack of any responsive filing by Blount. Therefore, the Court declines to consider Blount's opposition in ruling on this motion. See Smith v. Donahoe, 917 F. Supp. 2d 562, 567-68 (E.D. Va. 2013) (granting defendant's motion to strike plaintiff's opposition brief that was filed two weeks late).

Notwithstanding this, the Court decides this motion, which is functionally equivalent to a motion to dismiss, on its merits.  A number of federal courts have declared that a motion to dismiss may be properly granted without reaching the merits on grounds that a plaintiff's failure to respond is a concession that the motion should be granted or that dismissal is an appropriate sanction for failure to respond. See Osborne v. Long, No. 1:11-cv-00070, 2012 WL 851106, at *10 n.5 (S.D. W.Va. Mar. 13, 2012) (collecting cases). As one court has noted, however, "if a motion to dismiss is granted solely because it has not been opposed, the case is simply not being dismissed because the complaint failed to state a claim upon which relief may be granted. Rather, it is dismissed as a sanction[.]" Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991). There is no local rule in this district that mandates dismissal for failure to respond, and this Court declines to adopt one. Therefore, the motion to compel arbitration will be considered on its merits.

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