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Hugo Villasenor v. Fairfield Police Department

March 29, 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 and FINDINGS & RECOMMENDATIONS

On February 1, 2011, defendant City of Fairfield*fn1 filed a 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" (the "Motion".) (Motion, Dkt. Nos. 36, 38.) The Motion sought 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.) Plaintiff has filed no written opposition, statement of non-opposition, or other response to the pending motion despite being given multiple opportunities to do so and despite clear warnings from the court that such failure would lead to the involuntary dismissal of his lawsuit. For the reasons that follow, the undersigned recommends that plaintiff's action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b).

I. BACKGROUND

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 by March 3, 2011. See E.D. Local Rule 230(c).*fn3 Plaintiff filed neither a written opposition nor a statement of non-opposition by that date.

On March 8, 2011, and in response to plaintiff's failure to file a response to the Motion, the undersigned entered an order (the "Order") that: (1) continued the hearing on the Moving Defendants' motion to dismiss until April 14, 2011, to give plaintiff one more opportunity to file an opposition to defendant's pending motion, and (2) required plaintiff to file a written opposition or statement of non-opposition to the pending motion to dismiss on or before March 17, 2011. (Order, March 8, 2011, Dkt. No. 39.) The Order also expressly stated that plaintiff's failure to file a written opposition by that date would be deemed a statement of non-opposition to the pending motion, consent to the granting of the motion to dismiss, and would 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). (Id. at 4.)

That Order also stated, in part:

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. 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).

(Id. at 2-3 (emphasis in original, footnote omitted).)*fn4

Later in that Order, the court again warned plaintiff that: "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)." (Id. at 4.) Thus, the court gave plaintiff very clear warnings that his case would be dismissed for failure to prosecute his action, as well as his failure to comply with the Federal Rules of Civil Procedure, the court's orders, or the court's Local Rules.

The court's docket reveals that plaintiff has again failed to file a written opposition or statement of non-opposition to the Motion despite the extended March 17, 2011, deadline set in the Order. Despite the clear directions within the Order, plaintiff filed no written opposition, no statement of non-opposition, nor any other document. Plaintiff's repeated failure to file an opposition to the Motion is grounds for dismissal of his suit.

II. DISCUSSION

Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to comply with the court's local rules, or failure to comply with the court's orders.*fn5 See, e.g., 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) (recognizing 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); 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."); Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002) (affirming district court's dismissal of case for failure to prosecute when habeas petitioner failed to file a first amended petition). This court's Local Rules are in accord. See E.D. Local Rule 110 ("Failure 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 ...

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