(PS) N. S B v. Pascarella ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 N. S B, No. 2:20–cv–29–KJM–KJN PS 12 Plaintiff, ORDER REQUIRING OPPOSITION AND RESETTING HEARING 13 v. (ECF No. 4, 6) 14 JOHN PASCARELLA, 15 Defendants. 16 17 On January 3, 2020, Defendant removed this case to this Court. (ECF No. 1.) Defendant 18 subsequently filed a motion to dismiss and a motion to change venue, setting each for a February 19 13, 2020 hearing.1 (ECF Nos. 4, 6.) 20 Pursuant to this Court’s Local Rules, Plaintiff was obligated to file and serve a written 21 opposition or statement of non-opposition to the pending motion at least fourteen (14) days prior 22 to the hearing date: or January 30, 2020. See E.D. Cal. L.R. 230(c) (“Opposition, if any, to the 23 granting of the motion shall be in writing and shall be filed and served not less than fourteen (14) 24 days preceding the noticed (or continued) hearing date. A responding party who has no 25 opposition to the granting of the motion shall serve and file a statement to that effect, specifically 26 27 1 This action proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. § 636(b)(1). 28 1 designating the motion in question. No party will be entitled to be heard in opposition to a 2 motion at oral arguments if opposition to the motion has not been timely filed by that party. . . .”). 3 The Court’s docket reveals that Plaintiff, who is proceeding without counsel, failed to file a 4 written opposition or statement of non-opposition with respect to the motion for judgment on the 5 pleadings. 6 Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply 7 with these Rules or with any order of the Court may be grounds for imposition by the Court of 8 any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” 9 Moreover, Eastern District Local Rule 183(a) provides, in part: 10 Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these 11 Rules, and all other applicable law. All obligations placed on “counsel” by these Rules apply to individuals appearing in propria 12 persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these 13 Rules. 14 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 15 same rules of procedure that govern other litigants”) (overruled on other grounds). Case law is in 16 accord that a district court may impose sanctions, including involuntary dismissal of a plaintiff’s 17 case pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his 18 or her case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the 19 court’s local rules.2 See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a 20 court “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation 21 Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss 22 an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to 23 prosecute or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 24 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a 25 2 The Ninth Circuit Court of Appeals had held that under certain circumstances a district court does not abuse its discretion by dismissing a plaintiff’s case pursuant to Federal Rule of Civil 26 Procedure 41(b) for failing to file an opposition to a motion to dismiss. See, e.g., Trice v. Clark 27 County Sch. Dist., 376 Fed. App’x. 789, 790 (9th Cir. 2010) (unpublished). By analogy, this authority applies to failure to oppose a motion for judgment on the pleadings, which similarly 28 challenges a plaintiff’s complaint after the filing of an answer. 1 | proper ground for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) 2 | (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for 3 | failure to comply with any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 4 | F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have inherent power to 5 | control their dockets and may impose sanctions including dismissal or default). 6 In light of the foregoing, IT IS HEREBY ORDERED that: 7 1. The hearing on Defendants’ motions (ECF Nos. 4, 6), which is presently set for 8 February 13, 2020, is CONTINUED until March 5, 2020, at 10:00 a.m., in 9 Courtroom No. 25 before the undersigned; 10 2. Plaintiff shall file a written opposition to the motion for judgment on the 11 pleadings, or a statement of non-opposition thereto, on or before February 20, 12 2020. Plaintiff's failure to file a written opposition will be deemed a statement of 13 non-opposition to the pending motion and consent to the granting of the motion, 14 and shall constitute an additional ground for the imposition of appropriate 15 sanctions, including a recommendation that Plaintiff's entire case be involuntarily 16 dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 17 3. Defendant may file a written reply to Plaintiff’s opposition, if Defendant so 18 chooses, on or before February 27, 2020. 19 4. The Initial Scheduling Conference in this matter, currently set for May 14, 2020, is 20 VACATED, and will be rescheduled if and when necessary. 21 | Dated: January 31, 2020 2 Aectl Aharon 23 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 24 nsb.29 25 26 27 28