(PS) Mandujano v. Lester

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 YANAH MANDUJANO, No. 2:23-cv-02385-DJC-CKD (PS) 12 Plaintiff, ORDER 13 v. 14 KATHERINE LESTER, et al., 15 Defendants. 16 17 On September 18, 2024, defendants Katherine Lester and City of Davis filed motions to 18 dismiss plaintiff Yanah Mandujano’s complaint.1 (ECF Nos. 27, 28.) On September 24, 2024, 19 defendant Rob Bonta filed a motion to dismiss plaintiff’s complaint. (ECF No. 30.) Defendants 20 Lester and Bonta noticed their motions for a hearing to take place on November 13, 2024, at 21 10:00 a.m. before the undersigned. (ECF Nos. 27, 30.) Defendant City of Davis noticed its 22 motion for a hearing to take place on December 18, 2024, at 10:00 a.m. before the undersigned. 23 (ECF No. 28.) On the Court’s own motion, defendant Lester’s motion hearing was reset for 24 December 18, 2024, at 10:00 a.m. before the undersigned. (ECF No. 29.) Pursuant to this court’s 25 Local Rules, any opposition to the motion was to be filed and served no later than fourteen (14) 26 days after the date the motion was filed. Further, a responding party who has no opposition to the 27 1 This action proceeds before the undersigned pursuant to 28 U.S.C. § 636(b)(1) and E.D. Cal. 28 Local Rule 302(c)(21). 1 granting of the motion is required to serve and file a statement of non-opposition. See E.D. Cal. 2 L.R. 230(c) (“[a] responding party who has no opposition to the granting of the motion shall serve 3 and file a statement to that effect, specifically designating the motion in question”). That deadline 4 has now passed, and plaintiff has not filed either a statement of opposition or a statement of non- 5 opposition to defendants’ motions. 6 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 7 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 8 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 9 local rules. See e.g., Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 10 (9th Cir. 2005) (stating that courts may dismiss an action pursuant to Federal Rule of Civil 11 Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil 12 procedure or the court's orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) 13 (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for 14 failure to comply with any order of the court.”). 15 Here, plaintiff, who proceeds without counsel, failed to file a written opposition or 16 statement of non-opposition by the required deadlines, and therefore has not complied with Local 17 Rule 230(c). Further, plaintiff’s failure to file any opposition indicates to the court that plaintiff 18 may be consenting to the dismissal of this action. See Local Rule 230(c) (“A failure to file a 19 timely opposition may also be construed by the Court as a non-opposition to the motion.”). Thus, 20 plaintiff’s claims are subject to dismissal. 21 Given plaintiff’s pro se status, the court will not recommend dismissal at this time. 22 Instead, the court will vacate the November 13, 2024, and December 18, 2024, hearings and 23 provide plaintiff one final opportunity to either respond to defendant’s motion to dismiss or to file 24 a statement of non-opposition. See L.R. 230(c) (“[n]o party will be entitled to be heard in 25 opposition to a motion at oral arguments if opposition to the motion has not been timely filed by 26 that party.”). After the expiration of the deadlines below, the court will decide the matter on the 27 record and written briefing only. Plaintiff is cautioned that any further failure to comply with the 28 court’s Local Rules and this order by failing to file either an opposition or statement of non- 1 | opposition will be construed as non-opposition to the motions and will constitute additional 2 || grounds for dismissal under Rule 41(b). 3 ORDER 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The November 13, 2024, hearing on defendant Bonta’s motion to dismiss (ECF No. 6 30) is VACATED; 7 2. The December 18, 2024, hearing on defendants Lester and City of Davis’s motions to 8 dismiss (ECF Nos. 27, 28) is VACATED; 9 3. Within fourteen (14) days of this order, plaintiff shall file a written opposition or a 10 statement of non-opposition to defendant’s motion to dismiss; 11 a. Plaintiff's failure to file written oppositions will be deemed a statement of non- 12 opposition to the pending motion and consent to the granting of the motion, 13 and shall constitute an additional ground for the imposition of appropriate 14 sanctions, including a recommendation that plaintiff's entire case be 15 involuntarily dismissed with prejudice pursuant to Federal Rule of Civil 16 Procedure 41(b); and 17 4. Within seven (7) days of any opposition, any defendant may file a written reply. 18 | Dated: October 22, 2024 / ae I / a /y Ze 19 CAROLYNK. DELANEY 20 UNITED STATES MAGISTRATE JUDGE 21 5, mand2385.24 22 23 24 25 26 27 28