IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 28, 2011
TERRYLYN MCCAIN, PLAINTIFF,
CALIFORNIA HIGHWAY PATROL, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
On June 2, 2011, defendant California Highway Patrol filed a motion to dismiss plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and noticed that motion for a hearing before the undersigned to take place on July 7, 2011.*fn1 (See Notice of Mot. & Mot. to Dismiss, Dkt. No. 4.) Pursuant to the court's Local Rules, plaintiff was obligated to file and serve a written opposition or statement of non-opposition to the California Highway Patrol's motion at least fourteen days prior to the hearing date, or June 23, 2011. See E. Dist. Local Rule 230(c).*fn2 The court's docket reveals that plaintiff, who is proceeding without counsel, failed to file a written opposition or statement of non-opposition to the California Highway Patrol's 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.*fn3
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 (c) Opposition and Non-Opposition. Opposition, if any, to the granting of the motion shall be in writing and shall be filed and served not less than fourteen (14) days preceding the noticed (or continued) hearing date. A responding party who has no opposition to the granting of the motion shall serve and file a statement to that effect, specifically designating the motion in question. No party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party. . . 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."), cert. denied, 516 U.S. 838 (1995); 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."), cert. denied, 506 U.S. 915 (1992); 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), cert. denied, 479 U.S. 829 (1986).*fn4 In light of plaintiff's failure to file a written opposition or statement of non-opposition to the California Highway Patrol's motion to dismiss, the undersigned continues the July 7, 2011 hearing and provides plaintiff with a final opportunity to oppose the motion.
On June 22, 2011, plaintiff filed two motions to strike the California Highway Patrol's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(f), both of which do not substantively oppose the motion to dismiss. (Dkt. Nos. 19, 20.) As an initial matter, plaintiff did not properly notice these motions pursuant to Local Rule 230. In any event, plaintiff's motions are summarily denied because Federal Rule of Civil Procedure 12(f) is inapplicable here. Rule 12(f) may be used to strike "pleadings," and a motion is not a "pleading" See Fed. R. Civ.P. 12(f) ("The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.") (emphasis added); see Fed. R. Civ. P. 7(a) (defining a "pleading" as a complaint, an answer to a complaint, an answer to a counterclaim, an answer to a cross-claim, a third-party complaint, an answer to a third-party complaint, and a reply to an answer).) Accordingly, plaintiff may not use Rule 12(f) to strike a motion.*fn5
In light of the foregoing, IT IS HEREBY ORDERED that:
1. The hearing on defendant California Highway Patrol's motion to dismiss (Dkt. No. 4), which is presently set for July 7, 2011, is continued until August 11, 2011.
2. Plaintiff shall file a written opposition to the motion to dismiss, or a statement of non-opposition thereto, on or before July 7, 2011. Plaintiff's failure to file a written opposition 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 all or part of plaintiff's case be involuntarily dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b).
3. Defendant California Highway Patrol may file a written reply to plaintiff's opposition, if any, on or before July 28, 2011.
4. Plaintiff's motions to strike (Dkt. Nos. 19, 20) are denied. IT IS SO ORDERED.