Johnson v. City of Atwater ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LORI JOHNSON, et al., No. 1:19-cv-00237-DAD-SAB 12 Plaintiffs, 13 v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 14 CITY OF ATWATER, et al., (Doc. No. 27) 15 Defendants. 16 17 This matter came before the court on defendants’ motion to dismiss for failure to state a 18 claim. (Doc. No. 27.) A hearing on the motion was held on December 17, 2019. Attorney Kerry 19 Margason appeared telephonically on behalf of plaintiffs. Attorney Bruce Praet appeared 20 telephonically on behalf of defendants. Having reviewed the parties’ briefing and heard oral 21 argument, and for the reasons set forth below, the court grants defendants’ motion to dismiss. 22 This action is the latest in a string of actions that plaintiffs Lori and Richard Johnson 23 (collectively, “plaintiffs”) have filed against the City of Atwater and its officials.1 On January 18, 24 2019, plaintiffs filed this action in the Merced County Superior Court. (Doc. No. 1, Ex. 1.) 25 Defendants removed to this court on February 19, 2019, (Doc. No. 1), and filed a motion to 26 dismiss plaintiffs’ complaint on March 11, 2019. (Doc. No. 4.) Plaintiffs filed a motion to 27 1 See Johnson v. City of Atwater (“Johnson I”), no. 1:16-cv-01636-AWI-SAB (E.D. Cal.); 28 Johnson v. City of Atwater (“Johnson II”), no. 1:18-cv-00920-DAD-SAB (E.D. Cal.). 1 remand on May 18, 2019. (Doc. No. 5.) Subsequently, the parties stipulated that plaintiff would 2 have an extension of time until May 9, 2019 to respond to the motion to dismiss. (Doc. No. 11.) 3 On May 9, 2019, plaintiffs filed a first amended complaint, a motion for leave to file an 4 amended complaint, and a notice of withdrawal of their motion to remand. (Doc. No. 13.) On 5 May 13, 2019, the motion to dismiss and motion for leave to file an amended complaint were 6 referred to the assigned magistrate judge. (Doc. No. 16.) The assigned magistrate judge issued 7 findings and recommendations recommending (1) granting defendants’ motion to dismiss 8 plaintiffs’ complaint, (2) granting plaintiffs’ motion for leave to file an amended complaint, and 9 (3) disregarding plaintiffs’ first amended complaint (“FAC”) and ordering plaintiffs to file a FAC 10 addressing the identified deficiencies. (Doc. No. 21 at 27.) Plaintiffs filed a subsequent FAC on 11 September 25, 2019. (Doc. No. 26.) The FAC comprises two causes of action: (1) unlawful and 12 unreasonable search of a private property in violation of the Fourth Amendment and California 13 Constitution; and (2) unreasonable and unlawful seizure of private property in violation of the 14 Fourth Amendment and California Constitution. Defendants filed this motion to dismiss on 15 November 8, 2019. (Doc. No. 27.) 16 On December 11, 2019, plaintiffs filed a statement of non-opposition to the pending 17 motion to dismiss.2 (Doc. No. 29.) The court asked plaintiffs’ counsel at the hearing on the 18 motion whether plaintiffs opposed the court granting defendants’ motion to dismiss, and whether 19 plaintiffs sought leave to amend. Plaintiffs’ counsel informed the court that plaintiffs did not 20 oppose the granting of defendants’ motion to dismiss with prejudice and without leave to amend 21 ///// 22 ///// 23 24 2 Pursuant to Local Rule 230, plaintiffs’ opposition or non-opposition to defendants’ motion to dismiss was due December 3, 2019. On December 6, 2019, the court staff contacted plaintiffs’ 25 counsel inquiring whether counsel intended to file an opposition to the pending motion and noting that any untimely filings should be accompanied by a stipulation of the parties or, if one was 26 unavailable, an ex parte application to extend or shorten time. Plaintiffs’ counsel replied on 27 December 9, 2019, representing that an opposition would be filed by end of the day without explaining the delay in doing so. Nonetheless, on December 11, 2019, plaintiffs filed a notice of 28 non-opposition to defendants’ motion to dismiss dated December 9, 2019. (Doc. No. 29.) 1 | because they no longer wished to pursue this action.? Accordingly, defendants’ motion to dismiss 2 | will be granted with prejudice. See Hernandez v. Yuba Cmty. Coll. Dist., No. S-O06-1171 DFL 3 | GGH, 2006 WL 2655326, at *1 (E.D. Cal. Sept. 15, 2006) (granting defendants’ unopposed 4 | motions to dismiss with prejudice). 5 CONCLUSION 6 For the reasons set forth above: 7 1. Defendant’s motion to dismiss (Doc. No. 27) is granted with prejudice and without 8 leave to amend; and 9 2. The Clerk of the Court is directed to close this case. 10 | IT IS SO ORDERED. si am Dated: _ December 17, 2019 Lele A. 2, ay 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 | Federal Rule of Civil Procedure 41(a) permits a plaintiff to voluntarily dismiss an action without 27 | leave of court before service by the adverse party of an answer or motion for summary judgment. The court also has the authority to dismiss an action at the plaintiff's request by court order and 28 | upon terms the court considers proper. Jd. Here, dismissal on this ground is appropriate as well.