(PS) Mandujano v. Lester ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 YANAH MANDUJANO, No. 2:23-cv-02385-DJC-CKD (PS) 12 Plaintiff, ORDER 13 v. 14 KATHERINE LESTER, ET AL. 15 Defendants. 16 17 On January 18, 2024, defendants Rob Bonta and Katherine Lester filed motions to dismiss 18 plaintiff’s complaint.1 (ECF Nos. 5, 8.) Defendant Darren Pytel filed a motion to dismiss 19 plaintiff’s complaint on January 22, 2024. (ECF No. 9.) Defendants noticed their motions for 20 hearings to take place on March 6, 2024, at 10:00 a.m. before the undersigned. (ECF Nos. 5, 8, 21 9.) Pursuant to this court’s Local Rules, any opposition to the motion was to be filed and served 22 no later than fourteen (14) days after the date the motion was filed. Further, a responding party 23 who has no opposition to the granting of the motion is required to serve and file a statement of 24 non-opposition. See E.D. Cal. L.R. 230(c) (“[a] responding party who has no opposition to the 25 granting of the motion shall serve and file a statement to that effect, specifically designating the 26 motion in question”). That deadline has now passed, and plaintiff has not filed either a statement 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 of opposition or a statement of non-opposition to any of defendants’ motions. 2 A district court may impose sanctions, including involuntary dismissal of a plaintiff's case 3 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 4 case or fails to comply with the court's orders, the Federal Rules of Civil Procedure, or the court's 5 local rules. See e.g., Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 6 (9th Cir. 2005) (stating that courts may dismiss an action pursuant to Federal Rule of Civil 7 Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil 8 procedure or the court's orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) 9 (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for 10 failure to comply with any order of the court”). 11 Here, plaintiff, who proceeds without counsel, failed to file a written opposition or 12 statement of non-opposition by the required deadlines, and therefore has not complied with Local 13 Rule 230(c). Further, plaintiff’s failure to file any opposition indicates to the court that plaintiff 14 may be consenting to the dismissal of this action. See Local Rule 230(c) (“A failure to file a 15 timely opposition may also be construed by the Court as a non-opposition to the motion.”). Thus, 16 plaintiff’s claims are subject to dismissal. 17 Given plaintiff’s pro se status, the court will not recommend dismissal at this time. 18 Instead, the court will vacate the March 6, 2024, hearing and provide plaintiff one final 19 opportunity to either respond to defendants’ motions to dismiss or to file a statement of non- 20 opposition. See L.R. 230(c) (“[n]o party will be entitled to be heard in opposition to a motion at 21 oral arguments if opposition to the motion has not been timely filed by that party....”). After the 22 expiration of the deadlines below, the court will decide the matter on the record and written 23 briefing only. Plaintiff is cautioned that any further failure to comply with the court’s Local 24 Rules and this order by failing to file either an opposition or statement of non-opposition will be 25 construed as non-opposition to the motions and will constitute additional grounds for dismissal 26 under Rule 41(b). 27 ////// 28 ////// 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The March 6, 2024, hearing on defendants’ motions to dismiss (ECF Nos. 5, 8, 9) is 4 VACATED; 5 2. Within fourteen (14) days _of this order, plaintiff shall file a written opposition or a 6 statement of non-opposition to defendants’ motions to dismiss; 7 a. Plaintiff's failure to file written oppositions will be deemed a statement of non- 8 opposition to the pending motions and consent to the granting of the motions, 9 and shall constitute an additional ground for the imposition of appropriate 10 sanctions, including a recommendation that plaintiff's entire case be 11 involuntarily dismissed with prejudice pursuant to Federal Rule of Civil 12 Procedure 41(b); and 13 3. Within seven (7) days of any opposition, defendants may file a written reply. 14 15 | Dated: February 26, 2024 ae f | / a Ly ck 16 CAROLYNK. DELANEY SS 17 UNITED STATES MAGISTRATE JUDGE 21, mand.2385 18 19 20 21 22 23 24 25 26 27 28