Case 2:21-cv-03038-ODW-E Document 41 Filed 02/07/22 Page 1 of 5 Page ID #:290
1 O 2 3 4 5 6 7 United States District Court 8 9 Central District of California 10
11 DUANE R. FOLKE, Case № 2:21-cv-03038-ODW (Ex)
12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS [38]
14 CITY OF LOS ANGELES et al.,
15 Defendants. 16 17 I. INTRODUCTION 18 Defendants the City of Los Angeles (the “City”) and Officer Whitey (together, 19 “Defendants”) move to dismiss certain claims asserted against them in Plaintiff Duane 20 R. Folke’s First Amended Complaint. (See generally Mot. Dismiss (“Mot.” or 21 “Motion”), ECF No. 38; First Am. Compl. (“FAC”), ECF No. 37.) As explained below, 22 the Court GRANTS Defendants’ Motion.1 23 II. BACKGROUND 24 On April 7, 2021, Plaintiff filed this action against the City, Officer Whitey, the 25 Los Angeles Police Department (“LAPD”), Sargent Ferrer, Detective Yepp, and Officer 26 Lewis. (Compl., ECF No. 1.) Folke asserted five claims related to violations of his 27
28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Case 2:21-cv-03038-ODW-E Document 41 Filed 02/07/22 Page 2 of 5 Page ID #:291
1 civil rights: (1) illegal search and seizure under the Fourteenth Amendment (deprivation 2 of rights under 42 U.S.C. § 1983); (2) conspiracy to interfere with civil rights (violation 3 of 42 U.S.C. § 1985); (3) neglect to prevent (violation of 42 U.S.C. § 1986); (4) Monell 4 claim; and (5) retaliation. (Id.) Folke’s claims stemmed from four alleged arrests, 5 which occurred on: (1) March 16, 2019 (the “First Arrest”); (2) March 21, 2019 (the 6 “Second Arrest”); (3) March 26, 2019 (the “Third Arrest”); and (4) April 8, 2019 (the 7 “Fourth Arrest”). (Id.) 8 On June 25, 2021, Defendants moved to dismiss certain claims from Folke’s 9 Complaint. (See generally Mot. Dismiss (“First MTD”); ECF No. 18.) On 10 November 4, 2021, the Court granted Defendants’ motion in part by: (1) dismissing, 11 without leave to amend, all claims insofar as they related to the Second and Fourth 12 Arrests; (2) dismissing, with leave to amend, all claims against Officer Whitey insofar 13 as they related to the Third Arrest; (3) dismissing, without leave to amend, the § 1983, 14 § 1985, § 1986, and retaliation claims insofar as they asserted respondeat superior 15 liability against the City; and (4) dismissing, with leave to amend, the § 1986 claim as 16 to individual liability and the Monell claim. (See Order, ECF No. 30.) 17 On November 24, 2021, Folke filed his First Amended Complaint. (See 18 generally FAC.) Defendants again move to dismiss all claims asserted against Officer 19 Whitey insofar as they relate to the Third Arrest, the § 1986 claim as to individual 20 liability, and the Monell claim. (See Mot.) To date, Folke has not opposed the Motion. 21 Accordingly, the Court GRANTS in full Defendants’ Motion to Dismiss. 22 III. DISCUSSION 23 Under the Local Rules of the Central District of California, a plaintiff must file 24 an opposition to a motion to dismiss no later than twenty-one days prior to the hearing 25 date. C.D. Cal. L.R. 7-9. A plaintiff’s failure to file a timely opposition “may be 26 deemed consent to the granting . . . of the motion.” C.D. Cal. L.R. 7-12; see also 27 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (holding that a court may dismiss an 28 action based on a party’s failure to comply with the court’s Local Rules).
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1 Prior to dismissing an action pursuant to a local rule, courts must weigh: (1) the 2 public interest in expeditious resolution of cases, (2) the court’s need to manage its 3 docket, (3) the risk of prejudice to defendants, (4) public policy favoring disposition of 4 cases on the merits, and (5) the availability of less drastic measures. Ghazali v. Moran, 5 46 F.3d 52, 53 (9th Cir. 1995) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 6 (9th Cir. 1986)). However, “[e]xplicit findings with respect to these factors are not 7 required.” Ismail v. County of Orange, No. SACV 10-00901 VBF (AJW), 2012 WL 8 12964893, at *1 (C.D. Cal. Nov. 7, 2012) (citing Henderson, 779 F.2d at 1424); see 9 also Malone v. U.S. Postal Serv., 833 F.2d 128, 129 (9th Cir. 1987), cert. denied, 10 488 U.S. 819 (1988). In Ghazali, the Ninth Circuit found these factors favored granting 11 a motion to dismiss when the plaintiff received notice of the motion, had ample 12 opportunity to respond, yet failed to do so. 46 F.3d at 54. 13 Here, Defendants argue that Folke’s amendments to his Complaint go beyond the 14 scope of the Court’s leave to amend. (Mot. 1–2.) Defendants also argue that, where 15 Folke’s amendments do fall within the scope of the Court’s leave, Folke nevertheless 16 fails to cure the Complaint’s deficiencies. (Id.) However, the Court need not, and does 17 not, reach the merits of the Motion because Folke does not oppose it. (See generally 18 id.) Under Local Rule 7-9, given that Folke was on notice that the hearing date was 19 January 10, 2022, his opposition was due to be filed on December 20, 2021. See C.D. 20 Cal. L.R. 7-9. Thus, any opposition is well overdue. 21 Although Folke appears in this action pro se, he has been actively engaged in this 22 litigation for nearly one year. Folke has clearly demonstrated an ability to use the online 23 filing system and make timely submissions to the Court, as evidenced by, for example, 24 Folke’s timely responses to the Court’s October 28, 2021 Order to Show Cause, (see 25 Resps., ECF Nos. 31–34), and the timely filing of his FAC. Thus, Folke had both the 26 ability and the opportunity to respond to the Motion but elected not to do so. Because 27 Folke did not file an opposition, the Court finds that Folke conceded to the assertions 28 in the Motion, which therefore should be granted.
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1 A review of the Ghazali factors further supports granting the Motion. Here, there 2 is a significant risk of prejudice to Defendants if their Motion is not granted because 3 they have sought dismissal of the claims at issue since June 2021. (See First MTD.) 4 Additionally, the Court finds that there are no less drastic measures to resolve this issue. 5 Looking to the litigation history for this action, Plaintiff has repeatedly failed to follow 6 the Court’s instructions. (See, e.g., Order, ECF No. 36 (the Court finding that despite 7 instructing Plaintiff to file new proofs of service to remedy deficiencies identified in the 8 previous proofs of service, Plaintiff merely refiled the same deficient proofs of 9 service).) Thus, the Court is not convinced that providing Plaintiff with additional 10 opportunity to oppose the Motion would be effective. Therefore, the Court GRANTS 11 Defendants’ Motion in full. 12 IV. CONCLUSION 13 The Court GRANTS Defendants’ Motion to Dismiss. (ECF No. 38).
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Case 2:21-cv-03038-ODW-E Document 41 Filed 02/07/22 Page 1 of 5 Page ID #:290
1 O 2 3 4 5 6 7 United States District Court 8 9 Central District of California 10
11 DUANE R. FOLKE, Case № 2:21-cv-03038-ODW (Ex)
12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS [38]
14 CITY OF LOS ANGELES et al.,
15 Defendants. 16 17 I. INTRODUCTION 18 Defendants the City of Los Angeles (the “City”) and Officer Whitey (together, 19 “Defendants”) move to dismiss certain claims asserted against them in Plaintiff Duane 20 R. Folke’s First Amended Complaint. (See generally Mot. Dismiss (“Mot.” or 21 “Motion”), ECF No. 38; First Am. Compl. (“FAC”), ECF No. 37.) As explained below, 22 the Court GRANTS Defendants’ Motion.1 23 II. BACKGROUND 24 On April 7, 2021, Plaintiff filed this action against the City, Officer Whitey, the 25 Los Angeles Police Department (“LAPD”), Sargent Ferrer, Detective Yepp, and Officer 26 Lewis. (Compl., ECF No. 1.) Folke asserted five claims related to violations of his 27
28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Case 2:21-cv-03038-ODW-E Document 41 Filed 02/07/22 Page 2 of 5 Page ID #:291
1 civil rights: (1) illegal search and seizure under the Fourteenth Amendment (deprivation 2 of rights under 42 U.S.C. § 1983); (2) conspiracy to interfere with civil rights (violation 3 of 42 U.S.C. § 1985); (3) neglect to prevent (violation of 42 U.S.C. § 1986); (4) Monell 4 claim; and (5) retaliation. (Id.) Folke’s claims stemmed from four alleged arrests, 5 which occurred on: (1) March 16, 2019 (the “First Arrest”); (2) March 21, 2019 (the 6 “Second Arrest”); (3) March 26, 2019 (the “Third Arrest”); and (4) April 8, 2019 (the 7 “Fourth Arrest”). (Id.) 8 On June 25, 2021, Defendants moved to dismiss certain claims from Folke’s 9 Complaint. (See generally Mot. Dismiss (“First MTD”); ECF No. 18.) On 10 November 4, 2021, the Court granted Defendants’ motion in part by: (1) dismissing, 11 without leave to amend, all claims insofar as they related to the Second and Fourth 12 Arrests; (2) dismissing, with leave to amend, all claims against Officer Whitey insofar 13 as they related to the Third Arrest; (3) dismissing, without leave to amend, the § 1983, 14 § 1985, § 1986, and retaliation claims insofar as they asserted respondeat superior 15 liability against the City; and (4) dismissing, with leave to amend, the § 1986 claim as 16 to individual liability and the Monell claim. (See Order, ECF No. 30.) 17 On November 24, 2021, Folke filed his First Amended Complaint. (See 18 generally FAC.) Defendants again move to dismiss all claims asserted against Officer 19 Whitey insofar as they relate to the Third Arrest, the § 1986 claim as to individual 20 liability, and the Monell claim. (See Mot.) To date, Folke has not opposed the Motion. 21 Accordingly, the Court GRANTS in full Defendants’ Motion to Dismiss. 22 III. DISCUSSION 23 Under the Local Rules of the Central District of California, a plaintiff must file 24 an opposition to a motion to dismiss no later than twenty-one days prior to the hearing 25 date. C.D. Cal. L.R. 7-9. A plaintiff’s failure to file a timely opposition “may be 26 deemed consent to the granting . . . of the motion.” C.D. Cal. L.R. 7-12; see also 27 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (holding that a court may dismiss an 28 action based on a party’s failure to comply with the court’s Local Rules).
2 Case 2:21-cv-03038-ODW-E Document 41 Filed 02/07/22 Page 3 of 5 Page ID #:292
1 Prior to dismissing an action pursuant to a local rule, courts must weigh: (1) the 2 public interest in expeditious resolution of cases, (2) the court’s need to manage its 3 docket, (3) the risk of prejudice to defendants, (4) public policy favoring disposition of 4 cases on the merits, and (5) the availability of less drastic measures. Ghazali v. Moran, 5 46 F.3d 52, 53 (9th Cir. 1995) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 6 (9th Cir. 1986)). However, “[e]xplicit findings with respect to these factors are not 7 required.” Ismail v. County of Orange, No. SACV 10-00901 VBF (AJW), 2012 WL 8 12964893, at *1 (C.D. Cal. Nov. 7, 2012) (citing Henderson, 779 F.2d at 1424); see 9 also Malone v. U.S. Postal Serv., 833 F.2d 128, 129 (9th Cir. 1987), cert. denied, 10 488 U.S. 819 (1988). In Ghazali, the Ninth Circuit found these factors favored granting 11 a motion to dismiss when the plaintiff received notice of the motion, had ample 12 opportunity to respond, yet failed to do so. 46 F.3d at 54. 13 Here, Defendants argue that Folke’s amendments to his Complaint go beyond the 14 scope of the Court’s leave to amend. (Mot. 1–2.) Defendants also argue that, where 15 Folke’s amendments do fall within the scope of the Court’s leave, Folke nevertheless 16 fails to cure the Complaint’s deficiencies. (Id.) However, the Court need not, and does 17 not, reach the merits of the Motion because Folke does not oppose it. (See generally 18 id.) Under Local Rule 7-9, given that Folke was on notice that the hearing date was 19 January 10, 2022, his opposition was due to be filed on December 20, 2021. See C.D. 20 Cal. L.R. 7-9. Thus, any opposition is well overdue. 21 Although Folke appears in this action pro se, he has been actively engaged in this 22 litigation for nearly one year. Folke has clearly demonstrated an ability to use the online 23 filing system and make timely submissions to the Court, as evidenced by, for example, 24 Folke’s timely responses to the Court’s October 28, 2021 Order to Show Cause, (see 25 Resps., ECF Nos. 31–34), and the timely filing of his FAC. Thus, Folke had both the 26 ability and the opportunity to respond to the Motion but elected not to do so. Because 27 Folke did not file an opposition, the Court finds that Folke conceded to the assertions 28 in the Motion, which therefore should be granted.
3 Case 2:21-cv-03038-ODW-E Document 41 Filed 02/07/22 Page 4 of 5 Page ID #:293
1 A review of the Ghazali factors further supports granting the Motion. Here, there 2 is a significant risk of prejudice to Defendants if their Motion is not granted because 3 they have sought dismissal of the claims at issue since June 2021. (See First MTD.) 4 Additionally, the Court finds that there are no less drastic measures to resolve this issue. 5 Looking to the litigation history for this action, Plaintiff has repeatedly failed to follow 6 the Court’s instructions. (See, e.g., Order, ECF No. 36 (the Court finding that despite 7 instructing Plaintiff to file new proofs of service to remedy deficiencies identified in the 8 previous proofs of service, Plaintiff merely refiled the same deficient proofs of 9 service).) Thus, the Court is not convinced that providing Plaintiff with additional 10 opportunity to oppose the Motion would be effective. Therefore, the Court GRANTS 11 Defendants’ Motion in full. 12 IV. CONCLUSION 13 The Court GRANTS Defendants’ Motion to Dismiss. (ECF No. 38). The Court 14 DISMISSES without leave to amend, Folke’s claims against Officer Whitey insofar as 15 they related to the Third Arrest, Folke’s § 1986 claim as to individual liability, and 16 Folke’s Monell claim. Defendant the City of Los Angeles is hereby DISMISSED with 17 prejudice from this action as no claims remain pending against it. 18 19 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 28
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1 In summary, only Officer Whitey and LAPD remain as defendants in this action, 2 || and only the § 1983, § 1985, and retaliation claims remain pending against them. 5 IT IS SO ORDERED. 7 February 7, 2022 OFS . Capa 9 SE OTIS D. WRIGHT, II 10 UNITED STATES DISTRICT JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 |. ——— 2 On November 15, 2021, the Court dismissed Sargent Ferrer, Detective Yepp, and Officer Lewis for 26 || Folke’s failure to timely serve them his original Complaint. (Order, ECF No. 36.) It is unclear whether 7 these individuals are named as Defendants in the FAC. (Compare FAC 4 2 (not expressly designating these individuals as Defendants) with J 21a (designating these individuals as “Defendant Officers”).) 28 || In any case, the scope of the Court’s leave to amend did not include leave to reintroduce these individuals as Defendants, so the FAC did not have the effect of bringing them back into the case.