Stephen Lazar v. SMG Food and Beverage LLC et al
Filing
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ORDER GRANTING defendants SMG Food and Beverage, Inc. and Shaun Beards Motion to Dismiss 16 by Judge Otis D Wright, II. (MD JS-6. Case Terminated) (lc) Modified on 5/2/2012 (lc). Modified on 5/2/2012 (lc).
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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STEPHEN LAZAR,
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v.
Plaintiff,
Case No. 2:11-cv-09571-ODW (JCGx)
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS [16]
SMG FOOD & BEVERAGE, LLC, a
Delaware limited liability company;
SHAUN BEARD, an individual; and
DOES 1 through 250, inclusive,
Defendants.
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Before the Court is Defendants SMG Food and Beverage, Inc. and Shaun
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Beard’s Motion to Dismiss Plaintiff Stephen Lazar’s First Amended Complaint. (Dkt.
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No. 16.) Because Plaintiff has not filed any opposition, and for the reasons discussed
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in Defendants’ papers, the Court GRANTS Defendants’ Motion.
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As Plaintiff should now know, Central District of California Local Rule 7-9
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requires an opposing party to file an opposition to any motion at least 21 days prior to
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the date designated for hearing the motion. C. D. Cal. L. R. 7-9. Additionally, Local
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Rule 7-12 provides that “[t]he failure to file any required paper, or the failure to file it
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within the deadline, may be deemed consent to the granting or denial of the motion.”
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C. D. Cal. L. R. 7-12.
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The hearing on Defendants’ motion was set for May 14, 2012. Plaintiff’s
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opposition was therefore due by April 23, 2012. As of the date of this Order, Plaintiff
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has not filed an opposition, nor any other filing that could be construed as a request
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for a continuance. Plaintiff’s failure to oppose may therefore be deemed consent to
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the granting of Defendants’ Motion. Nevertheless, the Court has carefully considered
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Defendants’ arguments in support and, for the reasons discussed in Defendants’
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papers, hereby GRANTS Defendants’ Motion for Judgment on the Pleadings. The
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May 14, 2012 hearing on this matter is VACATED, and no appearances are
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necessary. The Court proceeds to remark briefly on the specific merits of Defendants’
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Motion.
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This is not Plaintiff’s first failure to oppose a motion seeking to dispose of
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Plaintiff’s fourth claim for failure to accommodate under the Fair Employment and
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Housing Act (“FEHA”) and seventh claim for intentional infliction of emotional
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distress (“IIED”). On March 5, 2012, Defendants filed a motion for judgment on the
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pleadings with respect to these claims. (Dkt. No. 13.) On March 19, 2012, following
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Plaintiff’s failure to oppose Defendants’ motion, the Court granted Defendants’
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motion for the reasons discussed in the motion and granted Plaintiff 14 days leave to
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amend. (Dkt. No. 14.) The Court specifically noted in that Order that an amended
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pleading must “allege additional facts necessary to state viable claims for failure to
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accommodate and intentional infliction of emotional distress.” (Id. at 2 (emphasis
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added).)
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On April 2, 2012, Plaintiff filed a First Amended Complaint. (Dkt. No. 16.)
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Despite the Court’s instruction to Plaintiff to allege additional facts supporting his
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claims, Plaintiff’s First Amended Complaint is nearly identical to Plaintiff’s original
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complaint. The addition of paragraph 50 to Plaintiff’s failure to accommodate claim
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does nothing to address the pleading infirmities addressed by Defendants’ motion for
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judgment on the pleadings, namely that failure to provide additional time to consider a
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job transfer is not an accommodation under FEHA. (Dkt. No. 13, at 3.) Nor does
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Plaintiff’s addition of allegations to his IIED claim that Defendants failed to
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“respond[] to plaintiff’s repeated requests for additional information between August
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12, 2010 and August 18, 2010, when Defendant knew or reasonably should have
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known that Defendant’s conduct was causing plaintiff severe emotional distress under
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the circumstances existing during this time as stated hereinabove” add enough facts to
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plead outrageous conduct “so extreme as to exceed all bounds of that usually tolerated
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in a civilized society” sufficient to survive a motion to dismiss. Davidson v. City of
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Westminster, 32 Cal. 3d 197, 209 (1982).
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Viewed together, Plaintiff’s failure to meaningfully amend his complaint to
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state his failure to accommodate and IIED claims and Plaintiff’s repeated decision not
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to oppose Defendants’ attacks on these claims suggest that any future attempts to
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amend these claims would be futile.
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accommodate and seventh claim for IIED are therefore DISMISSED WITH
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PREJUDICE. See AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th
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Cir. 2012) (“A district court abuses its discretion by denying leave to amend unless
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amendment would be futile or the plaintiff has failed to cure the complaint’s
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deficiencies despite repeated opportunities.”)
Plaintiff’s fourth claim for failure to
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IT IS SO ORDERED.
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May 1, 2012
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____________________________________
HON. OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
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