Lover-El v. Kroger Food 4 Less

• Court: District Court, S.D. California
• Decided: May 28, 2024
• Docket: 3:24-cv-00377
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 EL’ESTRO LOVER-EL, Case No.: 24-CV-377-CAB-DEB

7 Plaintiff, ORDER GRANTING UNOPPOSED 8 v. MOTION FOR JUDGMENT ON THE PLEADINGS 9 KROGER FOOD 4 LESS,

10 Defendant. [Doc. No. 5] 11 12 13 This matter is before the Court on a motion for judgment on the pleadings by 14 Defendant Kroger Food 4 Less on the grounds that the Court lacks subject matter 15 jurisdiction and that the complaint fails to state a claim. The motion was filed on April 8, 16 2024, and set a hearing date (for briefing purposes only) of May 13, 2024. Civil Local 17 Rule 7.1.e.2 requires a party opposing a motion to file an opposition or statement of non- 18 opposition no later than fourteen calendar days before the noticed hearing. Thus, based on 19 the hearing date of May 13, 2024, Plaintiff’s opposition to the motion to dismiss was due 20 on April 29, 2024. When no opposition was filed by that deadline, and because Plaintiff is 21 pro se and may have been confused by the applicable rules, the Court sua sponte entered 22 an order extending Plaintiff’s response deadline to May 22, 2024. [Doc. No. 16.] The 23 order specified that if Plaintiff did not file a response by this deadline, the motion for 24 judgment on the pleadings would be granted as unopposed, and the case would be 25 dismissed. Plaintiff still did not oppose the motion. 26 Under the local rules, Plaintiff’s failure to oppose “may constitute a consent to the 27 granting of [the] motion.” See CivLR 7.1.f.3.c. District courts have broad discretion to 28 enact and apply local rules, including dismissal of a case for failure to comply with the 1 rules. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming grant of an 2 ||unopposed motion to dismiss under local rule by deeming a pro se litigant’s failure to 3 oppose as consent to granting the motion). Before dismissing an action for failure to 4 ||comply with local rules, the district court “weigh[s] several factors: ‘(1) the public’s 5 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 6 ||(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 7 cases on their merits; and (5) the availability of less drastic sanctions.’” Ghazali, 46 F.3d 8 || at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). 9 Here, the Ghazali factors support granting the motion based on the lack of opposition 10 || because Plaintiff's failure to oppose the motion indicates that Plaintiff has abandoned this 11 ||lawsuit and consents to its dismissal. Indeed, that Plaintiff previously submitted other 12 || filings in this case, and that he appeared at the Early Neutral Evaluation conference where 13 ||he asserted that this Court lacks jurisdiction over him [Doc. No. 11], leads the Court to 14 assume that Plaintiff’s lack of opposition is intentional. Further, the public’s interest in 15 || expeditious resolution of litigation, the court’s need to manage its docket, the risk of 16 || prejudice to Defendant by further delays in this litigation, and the lack of appropriate less 17 || drastic sanctions all support dismissal. Moreover, upon review of the motion and of the 18 ||record, the motion appears to be meritorious and dismissal is warranted for all of the 19 ||reasons stated in the motion. 20 Accordingly, it is hereby ORDERED that the motion for judgment on the pleadings 21 |}is GRANTED based on the lack of opposition and on its merits for the reasons set forth 22 ||above. The complaint is therefore DISMISSED. The Clerk of Court is instructed to 23 || CLOSE this case. No further filings will be accepted. 24 It is SO ORDERED. 25 Dated: May 28, 2024 26 Y g 27 28 Hon. Cathy Ann Bencivengo United States District Judge