NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CYNTHIA WHEELER; CURTIS 

WHEELER, 

Plaintiffs-Appellants, 

 v. 

COUNTY OF ORANGE, a political 

subdivision of the State of California, ITS 

PUBLIC WORKS DIVISION, ITS 

CITATION PROCESSING CENTER; et al., 

Defendants-Appellees.

No. 20-56143 

D.C. No. 

8:20-cv-01264-MCS-DFM 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Mark C. Scarsi, District Judge, Presiding

Submitted November 19, 2021**

Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and BOUGH,*** District 

Judge.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Stephen R. Bough, United States District Judge for the 

Western District of Missouri, sitting by designation.

FILED

NOV 23 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

The complaint in this action alleges various claims against the County of 

Orange and various County employees concerning the efforts of Curtis and Cynthia 

Wheeler to relocate a gas line on their property. On September 4, 2020, the County 

defendants moved to dismiss the complaint. Under Central District of California 

Local Rule 7-9, the Wheelers’ opposition to the motion to dismiss was due by

September 14, but it was not filed it until September 21. The County defendants 

filed a reply two days later, pointing out the non-compliance with the local rule. 

Counsel for the Wheelers then submitted a declaration explaining that the one-week 

delay in filing the opposition was caused by an error entering the deadlines into his 

calendar. 

On October 5, 2020, the district court granted the County defendants’ motion 

to dismiss, finding that “Plaintiffs’ late filing operates as their consent to the granting 

of the Motion” under the local rule. The court did not acknowledge counsel’s 

declaration nor reach the merits of the motion to dismiss.

1

 

 In dismissing the complaint, the district court did not weigh the five factors 

listed in Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam), and 

therefore “we review the record independently to determine whether the district 

1 The Wheelers moved for reconsideration, but the district court denied the 

motion for failure to comply with the meet-and-confer requirement of the local rules.
3 

court abused its discretion.” Id. Applying that standard of review, we vacate the 

order of dismissal and remand.

None of the Ghazali factors favors dismissal. The case had been pending only 

three months and had been assigned to the district judge for only ten days when it 

was dismissed. The one-week delay in filing the response did not meaningfully 

implicate either the public’s interest in expeditious litigation or the court’s 

management of its docket. See id. at 53. Nor is there evidence of prejudice to 

defendants, who promptly replied to the late filing. The public policy of favoring

disposition of cases on the merits “counsels strongly against dismissal.” Hernandez 

v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). Finally, the district court did 

not consider less drastic alternatives, see Pagtalunan v. Galaza, 291 F.3d 639, 643 

(9th Cir. 2002), which were plainly available.2 Each party shall bear its own costs.

VACATED AND REMANDED.

2 We decline to address in the first instance the County defendants’ arguments 

that the motion to dismiss should have been granted on the merits.