Schmidt v. The Washington Newspaper Publishing Company, LLC ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 JOSEPH SCHMIDT, Case No. 20-cv-00830-BAS-NLS 11 Plaintiff, ORDER GRANTING DEFENDANT’S 12 UNOPPOSED MOTION TO DISMISS v. PLAINTIFF’S COMPLAINT 13 THE WASHINGTON NEWSPAPER [ECF No. 3] 14 PUBLISHING CO., LLC, d/b/a WASHINGTON EXAMINER, 15 Defendant. 16 17 Before the Court is Defendant Washington Newspaper Publishing Company’s 18 (“Defendant”) Motion to Dismiss (“Motion”). (Mot., ECF No. 3.) Plaintiff has not timely 19 filed any response to Defendant’s Motion. For the reasons discussed below, the Court 20 GRANTS Defendant’s Motion and DISMISSES WITH PREJUDICE Plaintiff’s 21 Complaint. 22 I. RELEVANT BACKGROUND 23 Plaintiff Joseph Schmidt commenced this action in San Diego Superior Court on 24 December 16, 2019, seeking damages for alleged defamation. (ECF No. 1-3.) On May 1, 25 2020, Defendant Washington Newspaper Publishing Company (“Defendant”) removed 26 this action to this Court. (ECF No. 1.) 27 On May 8, 2020, Defendant moved to dismiss Plaintiff’s Complaint on the basis 28 that (1) a Delaware court found the same claims to be time-barred; and (2) this prior 1 judgment should be afforded effect under the Full Faith and Credit Clause and the 2 principles of claim preclusion and res judicata. (ECF No. 3.) The Notice of Electronic 3 Filing indicates that notice of the Motion was served via emailed to Plaintiff’s counsel. 4 See Civ L.R. 5.4(c) (“The NEF that is automatically generated by the Court’s Electronic 5 Filing System constitutes service of the filed document on Filing Users.”). Under the 6 Local Rules, a party opposing a motion must file either an opposition or a statement of 7 non-opposition no later than fourteen calendar days prior to the noticed hearing date. Civ. 8 L.R. 7.1(e)(2). Here, because the hearing date for Defendant’s Motion was June 8, 2020, 9 Plaintiff was required to file either an opposition or a statement of non-opposition by May 10 25, 2020. (See ECF No. 6 (citing Civ. L.R. 7.1(e)(2)).) 11 The Court issued an Order to Show Cause (“OSC”) requiring Plaintiff to file an 12 opposition, notice of non-opposition, or voluntary dismissal of the action by June 22, 2020. 13 (ECF No. 9.) The Court noted that, pursuant to Local Rule 7.1(f)(3)(c),1 Plaintiff’s “failure 14 to timely respond to the OSC will be considered consent to the granting of Defendant’s 15 Motion and the dismissal of this action with prejudice.” Plaintiff did not timely respond 16 to the OSC. 17 II. LEGAL STANDARD 18 “The Ninth Circuit has held that a district court may properly grant a motion to 19 dismiss as unopposed pursuant to a local rule that permits, but does not require, the 20 granting of a motion for failure to respond.” See Burcher v. Lawhead, No. 18CV2559- 21 JAH (MDD), 2019 WL 5963635, at *1 (S.D. Cal. Nov. 13, 2019) (citing Ghazali v. Moran, 22 46 F.3d 52, 53 (9th Cir. 1995)); Steel v. City of San Diego, No. 09-cv-1743, 2009 WL 23 3715257, at *1 (S.D. Cal., Nov. 5, 2009) (citing same). 24 Further, “[a]lthough there is . . . a [public] policy favoring disposition on the merits, 25 it is the responsibility of the moving party to move towards that disposition at a reasonable 26 pace, and to refrain from dilatory and evasive tactics.” In re Eisen, 31 F.3d 1447, 1454 27 1 This provision states the following: “Waiver: If an opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or 28 1 (9th Cir. 1994). District courts have the inherent power to control their dockets and, “[i]n 2 the exercise of that power they may impose sanctions including, where appropriate, . . . 3 dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986), cert. 4 denied, 479 U.S. 829 (1986). As such, failure to comply with provisions of the local rules 5 and failure to comply with a court order also provide independent grounds for dismissal 6 of an action. See Ghazali, 46 F.3d at 53 (“Failure to follow a district court’s local rules is 7 a proper ground for dismissal.”); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th 8 Cir. 1992), as amended (May 22, 1992) (“Pursuant to Federal Rule of Civil Procedure 9 41(b), the district court may dismiss an action for failure to comply with any order of the 10 court.”). 11 To dismiss an action for any of the aforementioned reasons, the Court must weigh 12 the following factors: “(1) the public’s interest in expeditious resolution of litigation; (2) 13 the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 14 public policy favoring disposition of cases on their merits; and (5) the availability of less 15 drastic alternatives.” Burcher, 2019 WL 5963635, at *1 (applying factors prior to granting 16 an unopposed motion to dismiss); Ferdik, 963 F.2d at 1261 (applying factors to failure to 17 comply with court order); Garacci v. Ratelle, 116 F.3d 484 (9th Cir. 1997) (applying 18 factors to failure to comply with local rules). 19 III. ANALYSIS 20 As explained below, the Court finds four of the five factors weigh in favor of 21 dismissal.2 22 A. Public’s Interest In Expeditious Resolution 23 “[T]he public’s interest in expeditious resolution of litigation always favors 24 dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Although an 25 opposition or non-opposition to a motion is a basic requirement of motion practice, 26 Plaintiff’s response is to the Motion—which itself has been pending for over a month— 27 2 The Ninth Circuit has recognized that the fourth factor—the public policy favoring disposition of cases 28 on their merits—counsels against dismissal. Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir. 1 was overdue by over three weeks at the time the Court issued the OSC. Plaintiff has also 2 failed to avail himself of the additional opportunity to respond provided by the OSC. (ECF 3 No. 9.) Without a response from Plaintiff, the Court cannot determine the issues in dispute 4 and, consequently, cannot expeditiously resolve on the merits those issues still in 5 contention. Thus, the Court finds that this factor weighs in favor of dismissal. See 6 Swingler v. Dep’t of Veterans Affairs, No. 2:19-1135 DSF (ADS), 2019 WL 6620492, at 7 *2 (C.D. Cal. Nov. 5, 2019), report and recommendation adopted, No. 2:19-1135 DSF 8 (ADS), 2019 WL 6618922 (C.D. Cal. Dec. 5, 2019). 9 B. Court’s Need to Manage its Docket 10 A district court is in the best position to determine whether the delay in a particular 11 case interferes with docket management and the public interest. Ash v. Cuetkov, 739 F.2d 12 493, 496 (9th Cir. 1984). Here, Plaintiff failed to comply with the requirement to respond 13 to the motion to dismiss and to the OSC, despite being twice “given ample time to respond 14 to” Defendant’s motion. See Ghazali, 46 F.3d at 54. There is also no evidence before the 15 Court that Plaintiff was not aware of the pending motion. See id. Therefore, Plaintiff’s 16 failure to respond “impermissibly allow[s] [P]laintiff to control the pace of the docket 17 rather than the [C]ourt.” See Smith v. Cty. Of Riverside Sheriff Dep’t, No. ED CV 17-1969 18 DSF (SP), 2019 WL 7865170, at *3 (C.D. Cal. Nov. 18, 2019) (citing Pagtalunan v. 19 Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“It is incumbent upon the Court to manage its 20 docket without being subject to routine noncompliance of litigants.”)). Consequently, this 21 factor also weighs in favor of dismissal. 22 C. Prejudice to Defendant 23 “To prove prejudice, a defendant must establish that plaintiff’s actions impaired 24 defendant’s ability to proceed to trial or threatened to interfere with the rightful decision 25 of the case.” Pagtalunan, 291 F.3d at 642 (citing Malone v. U.S. Postal Serv., 833 F.2d 26 128, 131 (9th Cir. 1987)). “[T]he pendency of the lawsuit is not sufficiently prejudicial 27 itself to warrant dismissal.” Yourish, 191 F.3d at 991; accord Ash, 739 F.2d at 496. 28 However, “even in the absence of a showing of actual prejudice to the defendant,” 1 || prejudice is presumed from unreasonable delay. In re Eisen, 31 F.3d at 1452-53. Here, 2 ||Plaintiff has failed to respond to both the motion and the OSC and therefore has done 3 ||nothing to rebut this presumption. See Swingler, 2019 WL 6620492, at *2. 4 D. Availability of Less Drastic Sanctions 5 This factor examines whether less drastic alternatives to dismissal are feasible given 6 ||the circumstances of the case. In re Eisen, 31 F.3d at 1455. “[A] district court’s warning 7 ||to a party that [its] failure to obey the court’s order will result in dismissal can satisfy the 8 || ‘consideration of alternatives’ requirement.” Ferdik, 963 F.2d at 1262. Here, the Court’s 9 ||OSC clearly instructed Plaintiff to show cause by June 22, 2020, and warned Plaintiff “that 10 |/failure to timely respond . . . will be considered consent to the granting of Defendant’s 11 Motion and the dismissal of the action with prejudice.” (ECF No. 9.) Thus, the Court has 12 ||taken meaningful steps to explore alternatives to dismissal. See Henderson v. Duncan, 13 ||779 F.2d 1421, 1424 (9th Cir. 1986) (“The district court need not exhaust every sanction 14 ||short of dismissal before finally dismissing a case, but must explore possible and 15 ||meaningful alternatives.”); see also Swingler, 2019 WL 6620492, at *2. 16 CONCLUSION AND ORDER 17 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss 18 ||(ECF No. 3) and DISMISSES WITH PREJUDICE Plaintiff’s Complaint. The Clerk is 19 |/instructed to close the case. 20 IT IS SO ORDERED. 21 22 DATED: June 26, 2020 ( ill A | Apphaa A 23 United States District Judge 24 25 26 27 28