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Hector Wilmer Escober Pacheco v. Janet Napolitano

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION


August 22, 2011

HECTOR WILMER ESCOBER PACHECO,
PLAINTIFF,
v.
JANET NAPOLITANO, SECRETARY FOR DHS,
DEFENDANTS.

The opinion of the court was delivered by: Saundra Brown Armstrong United States District Judge

Docket 10

ORDER

pursuant to Federal Rules of Civil Procedure 12(b)(1)&(6), which was set for hearing on 14 July 12, 2011. Dkt. 10. Under the version of Civil Local Rule 7-3 in effect at the time the 15 motion was filed, any opposition or statement of non-opposition had to be filed no later 16 than twenty-one days before the noticed hearing date. As such, Plaintiff's response to the 17 instant motion should have been filed by no later than June 21, 2011. Paragraph 8 of the 18 Motion: The failure of the opposing party to timely file a memorandum of points and 20 authorities in opposition to any motion or request shall constitute a consent to the granting 21 of the motion." Dkt. 2 at 4. Moreover, on May 25, 2011, the Court issued an order 22 granting the motion to withdraw brought by Plaintiff's counsel ("Order of 5/25/11"). Dkt. 23

23. In the Order of 5/25/11, the Court warned Plaintiff that he was required to file an 24 opposition to Defendants' motion no later than June 21, 2011 or his case could be 25 dismissed. Notwithstanding the requirements of Civil Local Rule 7-3, and the Court's 26 warnings in its Standing Orders and the Order of 5/25/11, Plaintiff did not file an 27 opposition or statement of non-opposition by June 21, 2011. 28

The parties are presently before the Court on Defendants' motion to dismiss, Court's Standing Orders expressly warns as follows: "Effect of Failing to Oppose a 19

2 order providing Plaintiff with an additional opportunity to file an opposition or otherwise 3 agree to dismiss the action by no later than July 13, 2011 and continued the hearing until 4 September 20, 2011. Dkt. 25. The Court again warned Plaintiff that failure to comply 5 would result in dismissal of his action pursuant to Federal Rule of Civil Procedure 41(b). 6

To date, Plaintiff has not filed an opposition or responded. 7

8 comply with a court order pursuant to Federal Rule of Civil Procedure 41(b). See Link v. 9

As a result of Plaintiff's failure to respond, on July 6, 2011, the Court issued an A district court may sua sponte dismiss an action for failure to prosecute or to Wabash R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 10 1991). The court should consider five factors before dismissing an action under Rule 11 41(b): (1) the public interest in the expeditious resolution of the litigation: (2) the court's 12 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the availability of 13 less drastic sanctions; and (5) the public policy favoring the disposition of actions on their 14 merits. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). 15

16 the Court has given Plaintiff two opportunities to file an opposition or other response to Defendants' motion and he has failed to do so. Moreover, he has not prosecuted the case 18 since his counsel has withdrawn, even though the Order of 5/25/11 specifically informed 19 him of his duty to do so. Docket 23. The fourth factor also weighs in favor of dismissal 20 because less drastic sanctions would have little impact in light of the Court's prior warnings 21 that the failure to comply with its orders could result in the dismissal of the action. 22

Although the fifth factor appears to weigh against dismissal, dismissal is appropriate in 23 light of the other four factors. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (finding district court did not abuse its discretion in dismissing petition with prejudice 25 where three of the five factors weighed in favor of dismissal). In light of the foregoing, 26

The first three factors cited above weigh in favor of dismissal in light of the fact that

IT IS HEREBY ORDERED THAT Defendants' motion to dismiss is granted and

2 this action is hereby DISMISSED WITHOUT PREJUDICE for failure to prosecute, 3 pursuant to Federal Rule of Civil Procedure 41(b). This Order terminates Docket 10. The 4 Clerk of the Court shall close the file and terminate any pending matters. 5

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

PACHECO et al, Plaintiff, v. NAPOLITANO et al, Defendant.

Case Number: CV10-03413 SBA

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District 13 Court, Northern District of California. 14

That on August 25, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing 15 said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Hector Wilmer Escober Pacheco 1033 Bowdoin Street 19

San Francisco, CA 94134 20

Dated: August 25, 2011

Richard W. Wieking, Clerk

By: LISA R CLARK, Deputy Clerk

20110822

© 1992-2011 VersusLaw Inc.



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