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 (1) VACATING AUGUST 5, 13 v. 2021 HEARING, (2) REJECTING LATE-FILED OPPOSITION TO 14 SHARP HEALTHCARE; UNITED MOTION FOR JUDGMENT ON THE STATES OF AMERICA; and DOES 15 PLEADINGS, AND (3) GRANTING 1 through 50, UNOPPOSED MOTION 16 Defendants. 17 (ECF Nos. 13, 18)
18 Presently before the Court is Defendant Sharp Healthcare’s Motion for Judgment on 19 the Pleadings (“Mot.,” ECF No. 13). Pursuant to Civil Local Rule 7.1(e)(2), Plaintiff 20 Jawaher Polus’s opposition to the Motion was due on or before July 22, 2021. See S.D. 21 CivLR 7.1(e)(2). On July 28, 2021, Defendant filed a Notice of Plaintiff’s Non-Opposition 22 to Defendant’s Motion (ECF No. 17), which apparently prompted Plaintiff to file an 23 untimely Opposition to Defendant’s Motion the following day (“Opp’n,” ECF No. 18). 24 Defendant has since filed an Objection to the Opposition (“Obj.,” ECF No. 19). A hearing 25 on this matter is scheduled for August 5, 2021. The Court finds this matter appropriate for 26 disposition without oral argument and therefore VACATES the hearing and takes the 27 matter under submission pursuant to Civil Local Rule 7.1(d)(1). The Court further 28 REJECTS the late-filed Opposition and GRANTS the Motion, for the reasons that follow. 1 LATE-FILED OPPOSITION 2 As an initial matter, the Court rejects Plaintiff’s late-filed Opposition. Pursuant to 3 Federal Rule of Civil Procedure 6(b)(1)(B), “[w]hen an act . . . must be done within a 4 specified time, the court may, for good cause, extend the time . . . on motion made after the 5 time has expired if the party failed to act because of excusable neglect.” In assessing 6 “excusable neglect,” courts analyze the four “Pioneer factors”: “(1) the danger of prejudice 7 to the non-moving party, (2) the length of delay and its potential impact on judicial 8 proceedings, (3) the reason for the delay, including whether it was within the reasonable 9 control of the movant, and (4) whether the moving party’s conduct was in good faith.” 10 Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (en banc) (citing Pioneer Inv. Servs. 11 Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). Ultimately, the weighing 12 of the Pioneer factors is “entrusted to the discretion of the district court.” Id. at 859; see 13 also id. at 860 (“[W]e leave the weighing of Pioneer’s equitable factors to the discretion 14 of the district court in every case.”). 15 Plaintiff has not, in accordance with Rule 6(b)(1)(B), moved for an extension, 16 instead simply filing her untimely Opposition. Even overlooking this deficiency, however, 17 the Pioneer factors counsel against acceptance of the late-filed Opposition. The first factor 18 weighs against accepting the Opposition because Defendant would be prejudiced should 19 the Court do so. Defendant’s time to file a reply had essentially lapsed by the time the 20 Opposition was filed, see Obj. at 2; further, should the Court accept the Opposition, 21 Defendant would have to expend resources drafting a reply it no longer anticipated needing 22 to file. The second factor is more or less neutral; although Plaintiff’s reply was only a 23 week late, this case has been pending for more than eight months, and an Early Neutral 24 Evaluation Conference is scheduled for August 9, 2021. See generally Docket. Thus, 25 Plaintiff’s delay, while minimal, could impact the proceedings, particularly should the 26 Court extend the briefing schedule for the Motion to permit Defendant to file a reply. 27 The third factor, however, weighs strongly against accepting the Opposition. “[T]he 28 stated reason for the delay is the factor considered to be the linchpin in deciding whether 1 carelessness or neglect is excusable,” In re Pelle, 571 B.R. 846, 853 (Bankr. C.D. Cal. 2 2017), yet Plaintiff has provided no reason whatsoever for her late filing. Given that the 3 Opposition was filed one day after Defendant filed its Notice, however, the Court presumes 4 that Plaintiff’s counsel either was ignorant of the deadline or failed to calendar it 5 appropriately. Either way, while there is “[n]o rigid legal rule against late filings 6 attributable to any particular type of negligence,” Pincay, 389 F.3d at 860, in Pioneer, the 7 Supreme Court recognized that “inadvertence, ignorance of the rules, or mistakes 8 construing the rules do not usually constitute ‘excusable’ neglect,” 507 U.S. at 392. And, 9 in Pincay, the Ninth Circuit “recognize[d] that a lawyer’s failure to read an applicable rule 10 is one of the least compelling excuses that can be offered.” 389 F.3d at 859. Although the 11 Ninth Circuit in Pincay upheld the district court’s finding of excusable neglect, it noted 12 that, “[h]ad the district court declined to permit the filing of the notice, we would be hard 13 pressed to find any rationale requiring us to reverse.” Id. Plaintiff’s failure to comply with 14 the Local Rules is all the more notable here given that Plaintiff previously failed to oppose 15 a motion to dismiss filed by the United States of America. See ECF Nos. 3, 6. 16 The fourth factor weighs in favor of accepting the late-filed Opposition, as there is 17 no indication that Plaintiff’s counsel acted in bad faith. However, on balance, the Court 18 finds that the Pioneer factors weigh against accepting Plaintiff’s late-filed Opposition. 19 Accordingly, the Court REJECTS the Opposition (ECF No. 18). 20 MOTION FOR JUDGMENT ON THE PLEADINGS 21 The Ninth Circuit has held that, pursuant to a local rule, a district court may properly 22 grant a motion to dismiss for failure to respond to a motion. See generally Ghazali v. 23 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming dismissal for failure to file timely 24 opposition papers where plaintiff had notice of the motion and ample time to respond). 25 The Ninth Circuit has applied the same principle to motions for judgment on the pleadings. 26 See Heneage v. DTE Energy, 614 F. App’x 893, 894 (9th Cir. 2015) (citation omitted). 27 Here, a local rule allows the Court to grant the Motion. Civil Local Rule 7.1(f)(3)(c) 28 provides: “If an opposing party fails to file [an opposition] in the manner required by Civil 1 Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other 2 request for ruling by the court.” Unless the Court orders otherwise, pursuant to Civil Local 3 Rule 7.1(e)(2), an opposition must be filed 14 days prior to the noticed hearing. The 4 hearing for the present Motion was set for August 5, 2021, at 1:30 p.m.; thus, any 5 opposition was due on July 22, 2021. 6 In determining whether to dismiss an action, the court is required to weigh several 7 factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 8 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 9 favoring disposition of cases on their merits; and (5) the availability of less drastic 10 sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 11 (9th Cir. 1986)). The Ninth Circuit has recognized that the first and fourth factors cut in 12 opposite directions. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (first 13 factor always weighs in favor of dismissal); Hernandez v.
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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 (1) VACATING AUGUST 5, 13 v. 2021 HEARING, (2) REJECTING LATE-FILED OPPOSITION TO 14 SHARP HEALTHCARE; UNITED MOTION FOR JUDGMENT ON THE STATES OF AMERICA; and DOES 15 PLEADINGS, AND (3) GRANTING 1 through 50, UNOPPOSED MOTION 16 Defendants. 17 (ECF Nos. 13, 18)
18 Presently before the Court is Defendant Sharp Healthcare’s Motion for Judgment on 19 the Pleadings (“Mot.,” ECF No. 13). Pursuant to Civil Local Rule 7.1(e)(2), Plaintiff 20 Jawaher Polus’s opposition to the Motion was due on or before July 22, 2021. See S.D. 21 CivLR 7.1(e)(2). On July 28, 2021, Defendant filed a Notice of Plaintiff’s Non-Opposition 22 to Defendant’s Motion (ECF No. 17), which apparently prompted Plaintiff to file an 23 untimely Opposition to Defendant’s Motion the following day (“Opp’n,” ECF No. 18). 24 Defendant has since filed an Objection to the Opposition (“Obj.,” ECF No. 19). A hearing 25 on this matter is scheduled for August 5, 2021. The Court finds this matter appropriate for 26 disposition without oral argument and therefore VACATES the hearing and takes the 27 matter under submission pursuant to Civil Local Rule 7.1(d)(1). The Court further 28 REJECTS the late-filed Opposition and GRANTS the Motion, for the reasons that follow. 1 LATE-FILED OPPOSITION 2 As an initial matter, the Court rejects Plaintiff’s late-filed Opposition. Pursuant to 3 Federal Rule of Civil Procedure 6(b)(1)(B), “[w]hen an act . . . must be done within a 4 specified time, the court may, for good cause, extend the time . . . on motion made after the 5 time has expired if the party failed to act because of excusable neglect.” In assessing 6 “excusable neglect,” courts analyze the four “Pioneer factors”: “(1) the danger of prejudice 7 to the non-moving party, (2) the length of delay and its potential impact on judicial 8 proceedings, (3) the reason for the delay, including whether it was within the reasonable 9 control of the movant, and (4) whether the moving party’s conduct was in good faith.” 10 Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (en banc) (citing Pioneer Inv. Servs. 11 Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). Ultimately, the weighing 12 of the Pioneer factors is “entrusted to the discretion of the district court.” Id. at 859; see 13 also id. at 860 (“[W]e leave the weighing of Pioneer’s equitable factors to the discretion 14 of the district court in every case.”). 15 Plaintiff has not, in accordance with Rule 6(b)(1)(B), moved for an extension, 16 instead simply filing her untimely Opposition. Even overlooking this deficiency, however, 17 the Pioneer factors counsel against acceptance of the late-filed Opposition. The first factor 18 weighs against accepting the Opposition because Defendant would be prejudiced should 19 the Court do so. Defendant’s time to file a reply had essentially lapsed by the time the 20 Opposition was filed, see Obj. at 2; further, should the Court accept the Opposition, 21 Defendant would have to expend resources drafting a reply it no longer anticipated needing 22 to file. The second factor is more or less neutral; although Plaintiff’s reply was only a 23 week late, this case has been pending for more than eight months, and an Early Neutral 24 Evaluation Conference is scheduled for August 9, 2021. See generally Docket. Thus, 25 Plaintiff’s delay, while minimal, could impact the proceedings, particularly should the 26 Court extend the briefing schedule for the Motion to permit Defendant to file a reply. 27 The third factor, however, weighs strongly against accepting the Opposition. “[T]he 28 stated reason for the delay is the factor considered to be the linchpin in deciding whether 1 carelessness or neglect is excusable,” In re Pelle, 571 B.R. 846, 853 (Bankr. C.D. Cal. 2 2017), yet Plaintiff has provided no reason whatsoever for her late filing. Given that the 3 Opposition was filed one day after Defendant filed its Notice, however, the Court presumes 4 that Plaintiff’s counsel either was ignorant of the deadline or failed to calendar it 5 appropriately. Either way, while there is “[n]o rigid legal rule against late filings 6 attributable to any particular type of negligence,” Pincay, 389 F.3d at 860, in Pioneer, the 7 Supreme Court recognized that “inadvertence, ignorance of the rules, or mistakes 8 construing the rules do not usually constitute ‘excusable’ neglect,” 507 U.S. at 392. And, 9 in Pincay, the Ninth Circuit “recognize[d] that a lawyer’s failure to read an applicable rule 10 is one of the least compelling excuses that can be offered.” 389 F.3d at 859. Although the 11 Ninth Circuit in Pincay upheld the district court’s finding of excusable neglect, it noted 12 that, “[h]ad the district court declined to permit the filing of the notice, we would be hard 13 pressed to find any rationale requiring us to reverse.” Id. Plaintiff’s failure to comply with 14 the Local Rules is all the more notable here given that Plaintiff previously failed to oppose 15 a motion to dismiss filed by the United States of America. See ECF Nos. 3, 6. 16 The fourth factor weighs in favor of accepting the late-filed Opposition, as there is 17 no indication that Plaintiff’s counsel acted in bad faith. However, on balance, the Court 18 finds that the Pioneer factors weigh against accepting Plaintiff’s late-filed Opposition. 19 Accordingly, the Court REJECTS the Opposition (ECF No. 18). 20 MOTION FOR JUDGMENT ON THE PLEADINGS 21 The Ninth Circuit has held that, pursuant to a local rule, a district court may properly 22 grant a motion to dismiss for failure to respond to a motion. See generally Ghazali v. 23 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming dismissal for failure to file timely 24 opposition papers where plaintiff had notice of the motion and ample time to respond). 25 The Ninth Circuit has applied the same principle to motions for judgment on the pleadings. 26 See Heneage v. DTE Energy, 614 F. App’x 893, 894 (9th Cir. 2015) (citation omitted). 27 Here, a local rule allows the Court to grant the Motion. Civil Local Rule 7.1(f)(3)(c) 28 provides: “If an opposing party fails to file [an opposition] in the manner required by Civil 1 Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other 2 request for ruling by the court.” Unless the Court orders otherwise, pursuant to Civil Local 3 Rule 7.1(e)(2), an opposition must be filed 14 days prior to the noticed hearing. The 4 hearing for the present Motion was set for August 5, 2021, at 1:30 p.m.; thus, any 5 opposition was due on July 22, 2021. 6 In determining whether to dismiss an action, the court is required to weigh several 7 factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 8 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 9 favoring disposition of cases on their merits; and (5) the availability of less drastic 10 sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 11 (9th Cir. 1986)). The Ninth Circuit has recognized that the first and fourth factors cut in 12 opposite directions. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (first 13 factor always weighs in favor of dismissal); Hernandez v. City of El Monte, 138 F.3d 393, 14 401 (9th Cir. 1998) (fourth factor always weighs against dismissal). Therefore, the Court 15 considers the substance of factors two, three, and five. 16 Here, the second factor weighs in favor of dismissal. The Court must manage its 17 docket to ensure the efficient provision of justice. Plaintiff had notice of the Motion yet 18 failed to file a timely opposition. Plaintiff’s late-filed Opposition provides no excuse for 19 her failure to comply with the rules of procedure despite being represented by an attorney. 20 As to the third factor, the Court finds no risk of prejudice to Defendant if it grants 21 Defendant’s own Motion and affords Defendant the relief it seeks. Thus, this factor also 22 weighs in favor of dismissal. As to the fifth factor, where the plaintiff does not oppose 23 dismissal, it is “unnecessary for the Court to consider less drastic alternatives.” Rodriguez 24 v. Nationstar Mortg. LLC, No. 2:16–CV–5962–ODW(SK), 2016 WL 4581402, at *1 (C.D. 25 Cal. Sept. 1, 2016). Given that the Court has rejected the late-filed Opposition, this factor 26 therefore weighs in favor of dismissal as well. 27 Finding that the Ghazali factors weigh in favor of granting Defendant’s unopposed 28 Motion, the Court GRANTS the Motion (ECF No. 13). However, while Defendant seeks 1 || dismissal without leave to amend, see id. at 9, “[i]Jn the context of Rule 12(c), dismissal 2 || with prejudice is proper only if it is clear that no amendment could cure the defects 3 ||identified in the complaint.” Shavelson v. Hawaii C.R. Comm’n, No. CV 15-00055 LEK- 4 ||RT, 2019 WL 3225886, at *5 (D. Haw. July 17, 2019) (citing Harris v. Cty. of Orange, 5 F.3d 1126, 1135 (9th Cir. 2012)). Given that it is not clear that the defects identified 6 || by Defendant are incurable, the Court DISMISSES Plaintiff's Complaint WITH LEAVE 7 AMEND. 8 CONCLUSION 9 For the foregoing reasons, the Court VACATES the August 5, 2021 hearing, 10 ||REJECTS Plaintiffs late-filed Opposition (ECF No. 18), and GRANTS Defendant’s 11 || unopposed Motion (ECF No. 13). The Court DISMISSES Plaintiff’s Complaint (ECF No. 12 || 1-2) WITHOUT PREJUDICE. Plaintiff MAY FILE an amended complaint curing the 13 deficiencies identified in Defendant’s Motion no later than thirty (30) days after the date 14 |/on which this Order is electronically docketed. Should Plaintiff fail to file an amended 15 complaint within thirty (30) days, the Court will enter a final order dismissing this civil 16 action based on Plaintiff's failure to prosecute in compliance with a court order requiring 17 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 18 || not take advantage of the opportunity to fix his complaint, a district court may convert the 19 || dismissal of the complaint into dismissal of the entire action.’’). 20 IT IS SO ORDERED. 21 ||Dated: July 30, 2021 psi L. Lo meeaitie- 27 on. Janis L. Sammartino 33 United States District Judge 24 25 26 27 28