Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Hugo Villasenor v. Fairfield Police Department

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 8, 2011

HUGO VILLASENOR, PLAINTIFF,
v.
FAIRFIELD POLICE DEPARTMENT, CITY OF FAIRFIELD, AND DOES 1 TO 100, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

On February 1, 2011, defendant City of Fairfield*fn1 filed a motion (the "Motion") entitled "Motion To Dismiss, Or, In The Alternative, Motion To Compel Disclosures And Discovery Responses And An Appearance At Deposition; And Request For Sanctions." (Motion, Dkt. Nos. 36, 38.) The Motion seeks to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute, or, in the alternative, to compel plaintiff's discovery responses, disclosures, and appearance at deposition pursuant to Federal Rule of Civil Procedure 37 and Eastern District Local Rule 251(e).*fn2 (Motion, Dkt. No. 36.)

Defendant noticed its motion for a hearing to take place before the undersigned on March 17, 2011. Pursuant to this court's Local Rules, plaintiff was obligated to file and serve a written opposition or statement of non-opposition to the pending motion at least fourteen days prior to the hearing date, or March 3, 2011. See E. Dist. Local Rule 230(c).*fn3 The court's docket reveals that plaintiff, who is proceeding without counsel, failed to file a written opposition or statement of non-opposition with respect to the Motion.

Eastern District Local Rule 110 provides that "[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." Moreover, Eastern District Local Rule 183(a) provides, in part:

Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on "counsel" by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal . . . or any other sanction appropriate under these Rules.

See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants."). Case law is in accord that a district court may impose sanctions, including involuntary dismissal of a plaintiff's case pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or fails to comply with the court's orders, the Federal Rules of Civil Procedure, or the court's local rules.*fn4

See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court "may act sua sponte to dismiss a suit for failure to prosecute"); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) ("Failure to follow a district court's local rules is a proper ground for dismissal."); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court."); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets and may impose sanctions including dismissal).

The hearing on the pending motion will be continued to give plaintiff one final opportunity to file an opposition to defendant's pending motion. It is apparent from defendant's moving papers that defendant is concerned about the impact that delaying this pending motion will have on the upcoming discovery cutoff and other deadlines stated in the Status (Pretrial Scheduling) Order signed by District Judge John. A. Mendez. (Scheduling Order, Dkt. No. 34.) However, the undersigned also notes that notwithstanding these concerns, defendant was willing to set this Motion for a hearing on March 17, 2011, just eight days before the current discovery cutoff of March 25, 2011. (Scheduling Order at 3.) Nonetheless, the undersigned recognizes that, to the extent plaintiff files an opposition to defendant's motion and to the extent defendant's motion is not granted, it may be necessary to hold an additional status conference to review the deadlines in this case.*fn5

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. The hearing on defendant's motion to dismiss plaintiff's complaint (Dkt. No. 36), which is presently set for March 17, 2011, is continued to April 14, 2011;

2. Plaintiff shall file a written opposition to the motion to dismiss, or a statement of non-opposition thereto, on or before March 17, 2011. Plaintiff's failure to file a written opposition by this date will be deemed a statement of non-opposition to the pending motion and consent to the granting of the motion to dismiss, and shall constitute an additional ground for the imposition of appropriate sanctions, including a recommendation that plaintiff's case be involuntarily dismissed pursuant to Federal Rule of Civil Procedure 41(b);

3. If plaintiff files an opposition, he shall also address why he should not be sanctioned for having previously failed to file a timely opposition to the motion; and

4. Defendant may file a written reply to plaintiff's opposition, if any, on or before March 24, 2011.

IT IS SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.