Polus v. Sharp Healthcare ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAWAHER POLUS, Case No.: 20-CV-2253 JLS (LL) 12 Plaintiff, ORDER GRANTING DEFENDANT 13 v. UNITED STATES OF AMERICA’S MOTION TO DISMISS 14 SHARP HEALTHCARE; UNITED STATES OF AMERICA; and DOES 15 (ECF No. 3) 1 through 50, 16 Defendants. 17 18 Presently before the Court is the United States of America’s (the “United States”) 19 Motion to Dismiss (“Mot.,” ECF No. 3). No opposition to the Motion has been filed. 20 The Ninth Circuit has held that, pursuant to a local rule, a district court may properly 21 grant a motion to dismiss for failure to respond to a motion. See generally Ghazali v. 22 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming dismissal for failure to file timely 23 opposition papers where plaintiff had notice of the motion and ample time to respond). 24 Here, a local rule allows the Court to grant the Motion. Civil Local Rule 7.1(f)(3)(c) 25 provides: “If an opposing party fails to file [an opposition] in the manner required by Civil 26 Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other 27 request for ruling by the court.” Unless the Court orders otherwise, pursuant to Civil Local 28 Rule 7.1(e)(2), an opposition must be filed 14 days prior to the noticed hearing. The 1 hearing for the present Motion was set for December 17, 2020 at 1:30 p.m.; thus, any 2 opposition was due on December 3, 2020. 3 In determining whether to dismiss an action, the court is required to weigh several 4 factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 5 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 6 favoring disposition of cases on their merits; and (5) the availability of less drastic 7 sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 8 (9th Cir. 1986)). The Ninth Circuit has recognized that the first and fourth factors cut in 9 opposite directions. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (first 10 factor always weighs in favor of dismissal); Hernandez v. City of El Monte, 138 F.3d 393, 11 401 (9th Cir. 1998) (fourth factor always weighs against dismissal). Therefore, the Court 12 considers the substance of factors two, three, and five. 13 Here, the second factor weighs in favor of dismissal. The Court must manage its 14 docket to ensure the efficient provision of justice. Plaintiff had notice of the Motion yet 15 failed to file a timely opposition. Plaintiff has not provided any excuse for her failure to 16 timely file an opposition to the present Motion. The Court cannot continue waiting for 17 Plaintiff to take action, and a case cannot move forward when the plaintiff fails to defend 18 its case. Further, Plaintiff is represented by an attorney and nonetheless has failed to 19 comply with the rules of procedure. See Holt v. I.R.S., 231 Fed. App’x. 557, 558 (9th Cir. 20 2007) (holding court did not abuse its discretion in dismissing action for failure to file an 21 opposition and rejecting plaintiff’s contention that the district court should have warned 22 her of the consequences of failing to file an opposition). 23 As to the third factor, the Court finds no risk of prejudice to Defendants if it 24 dismisses the United States from this matter. In fact, the United States has requested the 25 dismissal. Thus, this factor also weighs in favor of dismissal. As to the fifth factor, where 26 the plaintiff does not oppose dismissal, it is “unnecessary for the Court to consider less 27 drastic alternatives.” Rodriguez v. Nationstar Mortg. LLC, No. 2:16–CV–5962– 28 ODW(SK), 2016 WL 4581402, at *1 (C.D. Cal. Sept. 1, 2016). Still, the Court did employ ] || the less drastic alternative of giving notice to the Parties that no opposition had been filed. 2 ||On December 14, 2020, the Court filed an Order vacating the hearing on the Motion and 3 || taking the matter under submission. See ECF No. 5. In that Order, the Court noted that no 4 || opposition had been filed. See id. Still, Plaintiff filed no opposition. This factor therefore 5 || weighs in favor of dismissal as well. 6 Finding that the Ghazali factors weigh in favor of granting the United States’ 7 unopposed Motion, the Court GRANTS the United States’ Motion and DISMISSES 8 || WITHOUT PREJUDICE Plaintiff's claims against the United States. Plaintiff MAY 9 || FILE an amended complaint realleging her claims against the United States if and when 10 can allege exhaustion of her administrative remedies such that this Court has subject 11 || matter jurisdiction over the claims in question. 12 IT IS SO ORDERED. 13 || Dated: December 18, 2020 , tt 14 i Janis L. Sammartino United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28