Gee v. FBI-San Diego ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEX GEE, Case No.: 3:18-cv-2378-GPC-MDD 12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED 14 FBI – SAN DIEGO, COMPLAINT AND VACATING THE 15 Defendant. HEARING DATE 16 [ECF No. 12] 17 18 Before the Court is Defendant FBI’s Motion to Dismiss Plaintiff’s First Amended 19 Complaint. ECF No. 12. Plaintiff has not filed any opposition. Defendant filed a reply 20 in support of the unopposed motion on January 13, 2020. ECF No. 15. For the reasons 21 discussed below the Court GRANTS Defendant’s motion and vacates the hearing date. 22 BACKGROUND 23 On March 29, 2019, Plaintiff filed the First Amended Complaint (“FAC”) against 24 Defendant alleging that he reported a kidnapping case to Defendant in or around October 25 2017. ECF No. 8. Plaintiff argues that Defendant is required to make available 26 information related to the kidnapping case under the Freedom of Information Act, 5 27 U.S.C. § 552. In the motion to dismiss, Defendant argues that Plaintiff’s FAC should be 28 1 dismissed because Plaintiff failed to properly serve the complaint and has additionally 2 failed to state a cognizable claim. ECF No. 12. 3 Plaintiff Alex Gee filed the original complaint on October 17, 2018. ECF No. 1. 4 Plaintiff subsequently filed the FAC on March 29, 2019. ECF No. 8. On December 11, 5 2019, the Court issued a briefing schedule requiring any opposition by Plaintiff to be 6 filed on or before January 24, 2020 and scheduling a hearing for February 7, 2020. ECF 7 No. 14. To date, Plaintiff has not filed an opposition. 8 DISCUSSION 9 Local Rule 7.1.e.2. requires a party opposing a motion to file an opposition or 10 statement of non-opposition within fourteen calendar days of the noticed hearing. As 11 further described in Local Rule 7.1.f.3.a., any party choosing not to oppose a motion must 12 file a written statement that he does not oppose the motion or otherwise request for ruling 13 by the court. “If an opposing party fails to file the papers in the manner required by 14 Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or 15 other request for ruling by the court.” Local Rule 7.1.f.3.c. 16 District courts have broad discretion to enact and apply local rules, including 17 dismissal of a case for failure to comply with the local rules. See Ghazali v. Moran, 46 18 F.3d 52, 53 (9th Cir.1995); United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). 19 The Ninth Circuit also permits dismissal pursuant to a local rule where the party is 20 acting pro se. Even though the court has an obligation to liberally construe their 21 pleadings, “pro se litigants are bound by the rules of procedure.” Ghazali, 46 F.3d at 22 54 (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). Before dismissing an 23 action for failure to comply with local rules, the district court “weigh[s] several factors: 24 ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 25 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 26 favoring disposition of cases of their merits; and (5) the availability of less drastic 27 sanctions.’ ” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 28 (9th Cir. 1986)). 1 Here, the Court concludes that “the public’s interest in expeditious resolution of 2 || litigation,” “the court’s need to manage its docket,” and “the risk of prejudice to the 3 || defendants” weigh in favor of granting the Motion to Dismiss based on Plaintiff's failure 4 ||to file an opposition. See Ghazali, 46 F.3d at 53. The majority of the Ghazali factors 5 || weigh in favor of dismissal. 6 The Court’s docket reflects that Plaintiff was served with copies of the motion to 7 || dismiss and the subsequent reply at the address listed by Plaintiff on the FAC —1.e., 5077 8 ||Santa Susana, Santa Barbara, CA 93111. ECF Nos. 13 and 16. Therefore, because 9 || Plaintiff has failed to comply with Civil Local Rule 7.1.f.3.c, the Court finds good cause 10 grant Defendant’s unopposed motion to dismiss the FAC. 11 Accordingly, the Court GRANTS Defendant’s motion to dismiss as unopposed. 12 || See Civ. Local R. 7.1.f.3.c. See also Ghazali, 46 F.3d at 53; Holt v. LR.S., 231 Fed. 13 || Appx. 557, 558 (9th Cir. 2007) (court did not abuse its discretion in dismissing action for 14 || failure to file an opposition and rejecting pro se plaintiff's contention that the district 15 || court should have warned her of the consequences of failing to file an opposition). 16 || Plaintiff's FAC is DISMISSED without prejudice, and the hearing on Defendant’s 17 motion, currently set for February 7, 2020, is VACATED. 18 IT IS SO ORDERED. 19 || Dated: January 27, 2020 7 sale Ok 20 Hon. Gonzalo P. Curiel 21 United States District Judge 22 23 24 25 26 27 28