Cooper v. City of Fairfield ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICIA V. COOPER, No. 2:21–cv–1538–JAM-KJN PS 12 Plaintiff, ORDER TO SHOW CAUSE 13 v. 14 CITY OF FAIRFIELD, et al., 15 Defendants. 16 17 On August 26, 2021, defendants removed to this court. (ECF No. 1.) On September 2, 18 defendants filed a motion to dismiss, noticing the motion for an October 7, 2021 hearing before 19 the undersigned.1 (ECF No. 3.) Under the Court’s Local Rules, plaintiff was obligated to 20 respond to defendants’ motion at least fourteen days prior to the hearing date: i.e. by September 21 23, 2021. See E.D. Cal. L.R. 230(c) (“Opposition, if any, to the granting of the motion shall be in 22 writing and shall be filed and served not less than fourteen (14) days preceding the [] hearing 23 date.”); see also “Order Setting Status Conference,” ECF No. 2 at ¶ 7 (citing L.R. 230(c), noting 24 the deadline to file opposition, and cautioning that failure to do so “may be deemed withdrawal of 25 opposition to the motion or may result in sanctions”). A review of the court’s docket reveals 26 plaintiff failed to do so by the deadline. 27 1 This action proceeds before the undersigned pursuant to 28 U.S.C. § 636(b)(1) and E.D. Cal. 28 Local Rule 302(c)(21). 1 “Failure of counsel or of a party to comply with these Rules or with any order of the Court 2 may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule 3 or within the inherent power of the Court.” E.D. Cal. Local Rule 110. Moreover, Local Rule 4 183(a) provides in relevant part: 5 Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these 6 Rules, and all other applicable law. All obligations placed on “counsel” by these Rules apply to individuals appearing [without 7 counsel]. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these 8 Rules. 9 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 10 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 11 court may impose sanctions, including involuntary dismissal of a plaintiff’s case under Federal 12 Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or fails to 13 comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local rules.2 14 See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua 15 sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 16 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 17 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 18 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 19 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 20 for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 21 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 22 any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 23 1986) (per curiam) (stating that district courts have inherent power to control their dockets and 24 may impose sanctions including dismissal or default). 25 /// 26 2 The Ninth Circuit Court of Appeals had held that under certain circumstances a district court 27 does not abuse its discretion by dismissing a plaintiff’s case pursuant to Federal Rule of Civil Procedure 41(b) for failing to file an opposition to a motion to dismiss. See, e.g., Trice v. Clark 28 County Sch. Dist., 376 Fed. App’x. 789, 790 (9th Cir. 2010) (unpublished). ] Plaintiff's failure to file opposition to the pending motion is in violation of Local Rules 2 | 110, 183(a), and 230(c), as noted above. Further, plaintiffs failure indicates to the court that 3 || plaintiff may be consenting to the dismissal of her case. See Local Rule 230(c) (‘A failure to file 4 || a timely opposition may also be construed by the Court as a non-opposition to the motion.”). 5 || Thus, plaintiffs claims are subject to dismissal. 6 However, given plaintiff is proceeding without counsel, the court will not recommend 7 || dismissal at this time. Instead, the court provides one final opportunity for plaintiff to respond to 8 | the pending motion. Any further failure to respond will be construed as non-opposition and will 9 || constitute additional grounds for dismissal under Rule 41(b). 10 Finally, Local Rule 230(c) states “[n]o party will be entitled to be heard in opposition to a 11 | motion at oral arguments if opposition to the motion has not been timely filed by that □□□□□□□□ .” 12 || Accordingly, the hearing on the motion is vacated, and after the expiration of the deadlines 13 || below, the court will decide the motion on the record and written briefing only. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. The October 7, 2021 hearing on defendants’ motion (ECF No. 3) is VACATED; 16 2. Plaintiff shall file a written opposition (or a statement of non-opposition) to the 17 motion to dismiss on or before October 14, 2021. Failure to do so will be deemed 18 a statement of non-opposition and consent to the granting of the motion, and may 19 constitute an additional ground for the imposition of appropriate sanctions, 20 including a recommendation that plaintiff's entire case be involuntarily dismissed 21 with prejudice pursuant to Federal Rule of Civil Procedure 41(b); and 22 3. Defendant may file a written reply to plaintiff's opposition within one week of 23 plaintiffs filing. The court will take defendants’ motion under submission after 24 this date. 25 || Dated: September 28, 2021 %6 Foci) Aharon 27 KENDALL J. NE coop.1538 UNITED STATES MAGISTRATE JUDGE 28