Booth v. Feinberg

• Court: District Court, S.D. California
• Decided: August 27, 2021
• Docket: 3:21-cv-01216
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TAMMY MAE BOOTH, Case No. 21-cv-01216-BAS-WVG

12 Plaintiff, ORDER GRANTING THE 13 v. UNOPPOSED MOTION TO DISMISS BY DEFENDANTS MARK D. 14 JEAN M. HEINZ, et al., FEINBERG, JEAN M. HEINZ, 15 Defendants. HEINZ & FEINBERG ATTORNEYS AT LAW (ECF No. 3) 16

17 18 19 20 21 22 23 For the third time, Plaintiff Tammy Mae Both brings an action seeking monetary 24 damages from Defendants Mark D. Feinberg, Jean M. Heinz, Heinz & Feinberg Attorneys 25 at Law. (ECF No. 1.) Her two previous actions were dismissed without prejudice, each 26 time because of her noncompliance with the Federal Rules of Civil Procedure and Local 27 Civil Rule. (Order, Booth v. Kane et al., 3:20-cv-02543-GPC-KSC, ECF No. 8; Order, 28 Booth v. Feinberg et al., 3:21-cv-01216-BAS-WVG, ECF No. 5.) 1 On July 6, 2021, Booth filed the present action against Defendants, raising copyright 2 infringement claims that are substantially identical to the ones raised before. On July 27, 3 2021, Defendants moved to dismiss Plaintiff’s Complaint under Federal Rule of Civil 4 Procedure 12(b)(6), noticing August 30, 2021, as the hearing date. (ECF No. 3.) Plaintiffs’ 5 deadline to file the opposition was August 16, 2021. Civ. L.R. 7.1(e). No opposition was 6 filed. 7 Civil Local Rule 7.1(e)(2) provides that a party opposing a motion must file either 8 an opposition or a statement of non-opposition no later than fourteen calendar days prior 9 to the noticed hearing date. If a party fails to comply with this rule, “that failure may 10 constitute a consent to the granting of a motion or other request for ruling by the court.” 11 Civ. L.R. 7.1(f)(3)(c). The Ninth Circuit has held that a district court may properly grant 12 a motion to dismiss for failure to respond pursuant to the court’s local rules. See Ghazali 13 v. Moran, 46 F.3d 52, 52 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to 14 file timely opposition papers where plaintiff had notice of the motion and ample time to 15 respond). Furthermore, even though federal courts will construe pleadings liberally in their 16 favor, “pro se litigants are bound by the rules of procedure.” Ghazali, 46 F.3d at 54 (citing 17 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by Lacey v. 18 Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012)). 19 Here, the record does not indicate that Plaintiff lacks notice of Defendants’ motion 20 to dismiss. Plaintiff’s deadline to respond has passed, yet she has not responded to the 21 motion. Because Plaintiff was made aware of the motion and had ample time to respond 22 to it, the Court deems Plaintiff’s failure to oppose Defendant’s motion as consent to 23 granting it. Civ. L.R. 7.1(f)(3)(c). The Court’s own review of the record also supports 24 dismissing Plaintiff’s Complaint. Accordingly, the Court GRANTS Defendants’ Motion 25 to Dismiss (ECF No. 3) and DISMISSES WITHOUT PREJUDICE Plaintiff’s 26 Complaint. 27 This is Plaintiff’s third attempt at litigating her claim against Defendants, yet she has 28 again failed to comply with the Federal Rules of Civil Procedure and the Local Civil Rules. 1 || Thus, the Court ORDERS that any future complaint involving the same events or the 2 || parties must be filed in this case. If Plaintiff files a new case in violation of this Order, the 3 || Court will summarily dismiss such action with prejudice for failure to comply with a court 4 |lorder. See Fed. R. Civ. P. 41(b); Stone v. City of Tucson, 249 F.R.D. 326, 327 (D. Ariz. 5 2008). 6 7 IT IS SO ORDERED. 8 A , 9 || DATED: August 27, 2021 Lin A (Lyohaa. 6 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _2.