Burcher v. Lawhead ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WALTER J. BURCHER, JR.; J.J.B, a Case No.: 18cv2559-JAH (MDD) minor; SUSAN BURCHER 12 ORDER GRANTING DEFENDANT’S Plaintiffs, 13 MOTION TO DISMISS [Doc. No. 11] v. 14 KIMBERLY LAWHEAD, et al., 15 Defendants. 16 17 INTRODUCTION 18 Plaintiffs originally filed this action on November 8, 2018, alleging violations of 19 their Fourth and Fifth Amendment rights under 42 U.S.C. §1983, and various state law 20 claims. See generally Doc. No. 1. On May 24, 2019, Defendant Kimberly Lawhead moved 21 to dismiss the Complaint for failure to state a claim. Doc. No. 11. Pursuant to Civ. L. R. 22 7.1(e)(2) & (4), Plaintiffs’ opposition to Defendant’s motion to dismiss was due to be filed 23 and served no later than June 14, 2019, based on the July 1, 2019, hearing date. See Civ. 24 L. R. 7.1(e)(2) & (4). On June 21, 2019, Defendant Kimberly Lawhead filed a Notice of 25 Lack of Opposition to Defendant’s motion to dismiss. Doc. No. 12. 26 // 27 // 28 1 DISCUSSION 2 Defendant seeks to dismiss the instant action for failure to state a claim. Plaintiffs 3 have filed no response to the motion. 4 The Ninth Circuit has held that a district court may properly grant a motion to 5 dismiss as unopposed pursuant to a local rule that permits, but does not require, the granting 6 of a motion for failure to respond. See generally, Ghazali v. Moran, 46 F.3d 52, 53 (9th 7 Cir. 1995) (per curiam) (affirming dismissal for failure to timely file opposition papers). 8 Civil Local Rule 7.1 provides that “each party opposing a motion ... must file that 9 opposition ... with the clerk ... not later than fourteen (14) calendar days prior to the noticed 10 hearing.” S.D. Cal. Civ. Local Rule 7.1(e)(2). “If an opposing party fails to file the papers 11 in the manner required by Local Rule 7.1.e.2, that failure may constitute a consent to the 12 granting of that motion or other request for ruling by the court.” S.D. Cal. Civ. Local Rule 13 7.1(f)(3)(a). 14 “Although there is ... a [public] policy favoring disposition on the merits, it is the 15 responsibility of the moving party to move towards that disposition at a reasonable pace, 16 and to refrain from dilatory and evasive tactics.” In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 17 1994) (affirming grant of motion to dismiss for failure to prosecute); see also Steel v. City 18 of San Diego, No. 09cv1743, 2009 WL 3715257, at *1 (S.D. Cal., Nov.5, 2009) (dismissing 19 action pursuant to Local Rule 7.1 for plaintiff's failure to respond to a motion to dismiss). 20 The instant motion to dismiss in this case contains proof of service indicating that 21 Plaintiffs were served with the motion. Doc. No. 11-2. The motion to dismiss reflects that 22 the hearing for the motion was noticed for July 1, 2019. As of the date of this Order, 23 Plaintiffs have failed to file any opposition to the motion to dismiss. 24 Prior to granting an unopposed motion for dismissal, the Court must weigh the 25 following factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 26 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 27 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 28 sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 1 (9th Cir. 1986)). The Ninth Circuit has recognized that the first and fourth factors cut in 2 opposite directions. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) 3 (first factor always weighs in favor of dismissal); Hernandez v. City of El Monte, 138 F.3d 4 393, 401 (9th Cir. 1998) (fourth factor counsels against dismissal). 5 With regard to the Ghazali factors, the Court will address only the second, third, and 6 fifth factors, as the first and fourth factors cut in opposite directions. The Court finds the 7 second factor weighs in favor of dismissal, as Plaintiffs failed to comply with one of the 8 most basic requirements of litigation and offers no excuse for failing to respond to 9 Defendant’s motion to dismiss. Additionally, the Court finds the third factor also weighs 10 in favor of dismissal, as significant delay in the resolution of this matter prejudices 11 Defendants. Based on the foregoing, the Court finds the Ghazali factors weigh heavily in 12 favor of granting Defendant’s motion to dismiss. 13 Notably, Plaintiffs Walter J. Burcher and Susan Burcher filed this action listing their 14 minor child, J.J.B., as a plaintiff. The Court must then turn to the Federal Rules of Civil 15 Procedure (“Fed.R.Civ.P”) which govern who can sue and be sued, and in what capacity. 16 See generally Rule 17, Fed.R.Civ.P. 17 Rule 17 states that “an action must be prosecuted in the name of the real party in 18 interest,” unless brought by a duly appointed representative. Rule 17(a)(1), Fed.R.Civ.P. 19 “A minor person who does not have a duly appointed representative may sue by a next 20 friend or by a guardian ad litem. The court must appoint a guardian ad litem--or issue 21 another appropriate order--to protect a minor or incompetent person who is unrepresented 22 in an action.” Rule 17(c)(2), Fed.R.Civ.P. “The [appointed representative] must be truly 23 dedicated to the best interests of the [minor] on whose behalf he [or she] seeks to litigate,” 24 and not motivated by any personal gain. Smith v. Adamas, No. C 09-3764 PJH (PR), 2010 25 WL 458913, at *1 (N.D. Cal. Feb. 3, 2010). In any case, if the person attempting to bring 26 suit in federal court on behalf of the minor is the minor’s parent or guardian, the parent 27 must retain a lawyer. Tagle v. Clark Cty., 678 F. App'x 600 (9th Cir. 2017) (emphasis 28 added) (quoting Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (a parent 1 || or guardian cannot bring an action on behalf of a minor child without retaining a lawyer); 2 || see also Fong Sik Leung v. Dulles, 226 F.2d 74, 82 (9th Cir. 1995) ("[No] asserted or actual 3 || parent[ ] may claim to be a guardian ad litem of his minor child as a matter of right.”). 4 While J.J.B lacks capacity as an infant to sue on his own behalf, Walter J. Burcher 5 Susan Burcher acting alone also lack the capacity to bring this action on behalf of their 6 ||infant child. The minor’s interest must be represented by a trained legal professional. See 7 || Johns, 114 F.3d at 877 (agreeing with Third Circuit rationale that minors are entitled to 8 trained legal assistance so their rights may be fully protected.) 9 CONCLUSION AND ORDER 10 IT IS HEREBY ORDERED: 11 1. Defendant Kimberly Lawhead’s motion to dismiss is GRANTED. Defendant is 12 DISMISSED from the case without prejudice. 13 2. The Court GRANTS Plaintiffs forty-five (45) days leave from the date of this Order 14 in which to file an Amended Complaint which cures all the deficiencies of pleading. 15 Plaintiffs are cautioned, however, that should they choose to file an Amended 16 Complaint, it must be complete by itself, comply with the Federal Rules of Civil 17 Procedure and that any claim not realleged will be considered waived. See S.D. Cal. 18 CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 19 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”; Lacey v. 20 Maricopa Cnty., 963 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed 21 with leave to amend which are not re-alleged in an amended pleading may be 22 “considered waived if not repled.” ) 23 || IT ISSO ORDERED. 24 25 || Dated: November 13, 2019 26 he h Nisa = 97 J HN A. HOUSTON United States District Judge 28