The opinion of the court was delivered by: VAUGHN WALKER, District Judge
O Jury Verdict. This action came before the Court for a trial
by jury. The issues have been tried and the jury has rendered its
(x) Decision by Court. This action came to trial or hearing
before the Court. The issues have been tried or heard and a
decision has been rendered.
IT IS SO ORDERED AND ADJUDGED that judgment is entered in
favor defendants and against plaintiff. ORDER
Defendant Harbor Island Apartments (Harbor Island) has moved to
dismiss or strike pro se plaintiff Betsy P. Elgar's second amended
complaint. Doc # 33. For the following reasons, Harbor Island's
motion is GRANTED. The court DISMISSES this action against all
defendants and closes the case.
On November 22, 2002, pro se plaintiff Betsy P. Elgar filed a
complaint against defendants "Alameda Housing Authority" and
Harbor Island, alleging harassment and discrimination. Doc # 1. Due to an apparent confusion on plaintiff's part regarding the
appropriate agency to name in the complaint, summons were issued
to both the Alameda County Housing Authority (the County) and the
Housing Authority of the City of Alameda (the City). The City
answered the complaint, while the County moved to dismiss
pursuant to Rule 12(b)(6). Docs ## 6, 9. Plaintiff failed to
oppose the motion in a timely fashion, so the court issued an
order to show cause (OSC) why the court should not treat the
motion as unopposed. Doc # 15. Plaintiff responded to the OSC by
letter, and the court granted her additional time in which to
file an opposition. Docs ## 16, 17. After receipt of plaintiff's
opposition (Doc # 20), the court granted the County's motion on
the basis that plaintiff's complaint contained no allegations of
misconduct on the County's part. Doc # 22.
Subsequently, plaintiff filed her first amended complaint (FAC)
on July 21, 2003. Doc # 23. Little activity took place for
several months, with the exception of plaintiff's filing of
several letters. See Docs ## 24, 25. On April 7, 2004, plaintiff
filed a second amended complaint (SAC). Doc # 27. The SAC is
identical in every way to the FAC, with the exception of a letter
attached to the SAC in which plaintiff apparently seeks to remind
the court about the existence of the complaint. Plaintiff also
continued to file letters with the court. Docs ## 28, 29, 30, 31.
The City filed an answer to the SAC on June 2, 2004. Doc # 32.
On June 10, 2004, Harbor Island filed a motion to dismiss or to
strike the SAC, which was noticed for an August 5, 2004, hearing.
Doc # 33.
Throughout the months of June and July, the court continued to receive letters from plaintiff. Docs ## 35, 36, 37.
The court, however, failed to receive a timely opposition or
statement of nonopposition from plaintiff. On July 19, 2004,
therefore, the court issued an order to show cause (OSC) why
Harbor Island's motion to dismiss should not be treated as
unopposed. Doc # 38. On August 3, 2004, the court received a
letter from plaintiff that appears to be responsive to the July
As a threshold matter, plaintiff's August 2 letter is
insufficient to discharge the OSC why Harbor Island's motion
should not be treated as unopposed. Initially, the court notes
that plaintiff did not file the letter as a document in her case
file, nor did she attach any proof of service of the letter upon
opposing counsel. Plaintiff must officially file documents such
as pleadings and responses to court orders, rather than simply
mailing them to the court's chambers. Plaintiff must also serve
copies of such documents on defendants and should provide proof
of such service to the court.
Even assuming that plaintiff's response to the OSC had been
served and filed in an appropriate fashion, the substance of that
response is insufficient. The court specifically instructed
plaintiff in the July 19 OSC that her response should address the
reasons she failed to comply with the local rules. 7/19/04 OSC
(Doc # 38) at 2:24-26. The court also instructed plaintiff to address the arguments raised by Harbor Island in its motion,
including whether: (1) plaintiff was authorized to file the SAC;
(2) the SAC contains proper jurisdictional allegations; and (3)
the SAC fails to state a claim or is hopelessly uncertain. Id ...