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John Kent v. City of Sacramento

December 1, 2011

JOHN KENT, PLAINTIFF,
v.
CITY OF SACRAMENTO, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS

Presently before the court is defendants' motion for summary judgment or partial summary judgment (Dkt. No. 69), to which plaintiff filed no written opposition or statement of non-opposition.*fn1 Plaintiff failed to respond to defendants' motion for summary judgment despite the fact that plaintiff has been repeatedly warned in this case and in a parallel action entitled Kent v. California Department of Consumer Affairs et al., 2:09-cv-02905 KJM KJN PS ("Kent II"), that his failure to prosecute his lawsuits or to follow the court's orders, the court's Local Rules, or the Federal Rules of Civil Procedure would result in a recommendation that his action be dismissed. As a result of plaintiff's failure to respond to defendants' motion for summary judgment despite myriad warnings of the potential consequence of such a failure, the undersigned recommends that plaintiff's action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) and Eastern District of California Local Rules ("Local Rules") 110 and 183(a).

I. BACKGROUND

Plaintiff commenced this action in November 2007 (Dkt. No. 1), and filed his operative Second Amended Complaint on May 27, 2008 (Dkt. No. 8). On December 30, 2009, the magistrate judge previously assigned to this case entered a Status (Pretrial Scheduling) Order, which requires that all law and motion matters other than motions for continuances, temporary restraining orders, or other emergency applications be heard no later than December 14, 2011.*fn2

(Status (Pretrial Scheduling) Order at 3-4, Dkt. No. 46.)

On October 19, 2011, defendants filed their motion for summary judgment and noticed that motion for a hearing to take place on December 8, 2011.*fn3 Defendants also filed a Proof of Service reflecting service of defendants' moving papers on plaintiff (Dkt. No. 70).

Pursuant to the court's Local Rule 230(c), plaintiff was required to file a written opposition to the motion for summary judgment, or a statement of non-opposition, no later than 14 days prior to the December 8, 2011 hearing date, or November 24, 2011.*fn4 Notably, November 24, 2011, was the Thanksgiving holiday. However, even providing plaintiff with the most liberal and charitable reading of the Federal Rules of Civil Procedure and the court's Local Rules, plaintiff was required to file a written opposition or statement of non-opposition at the latest on November 28, 2011. Nevertheless, plaintiff failed to file a timely written opposition to defendants' motion for summary judgment or a statement of non-opposition. Indeed, plaintiff has filed nothing with the court since defendants filed their motion for summary judgment.

On November 28, 2011, defendants filed a notice of their intent not to file a reply brief in support of the motion for summary judgment because plaintiff had failed to file and serve a timely written opposition (Dkt. No. 71). On November 29, 2011, the court vacated the hearing date on defendants' motion for summary judgment in light of plaintiff's failure to oppose that motion. (Minute Order, Nov. 29, 2011, Dkt. No. 72.)

Considering plaintiff's status as a pro se party, the court ordinarily would have continued the December 8, 2011 hearing and provided plaintiff with additional time to file a response to the motion for summary judgment. However, such a continuance is not warranted in this case because plaintiff has been repeatedly warned of the consequences for failing to follow the court' Local Rules, that even pro se parties must follow the Local Rules, and that his failure to timely respond to a potentially dispositive motion would result in a recommendation that his case be involuntarily dismissed with prejudice. Accordingly, plaintiff cannot claim ignorance of the applicable Local Rules.

In this case, the court has repeatedly warned plaintiff in various contexts that his failure to follow the court's Local Rules, the court's orders, and the Federal Rules of Civil Procedure-including his failure to respond to motions-could result in the imposition of sanctions including involuntary dismissal. (See Order, Apr. 23, 2008, at 6 ("Plaintiff is cautioned that failure to file an amended complaint containing a 'short and plain statement of the claim,' may be grounds for dismissal."), Dkt. No. 6; Order, July 23, 2008, at 7 (service order stating that "[f]ailure to comply with this order may result in a recommendation that this action be dismissed"), Dkt. No. 9; Scheduling Order ¶ 6 (including the following warnings: (1) "Failing to obey federal or local rules, or order of this court, may result in dismissal of this action" ; (2) "Even though the court will construe pro se pleadings liberally, pro se litigants must comply with the procedural rules"; and (3) "the parties are cautioned that pursuant to Local Rule 78-230(c), opposition to granting of a motion must be filed fourteen (14) days preceding the noticed hearing date"), Dkt. No. 11; Order to Show Cause, Nov. 24, 2008, at 2 ("Plaintiff shall show cause, in writing, within 20 days after the filing date of this order, why this case should not be dismissed for failure to comply and failure to complete service of process are required by Fed. R. Civ. P. 4(m)."), Dkt. No. 12; Order to Show Cause, July 7, 2009, at 2 (addressing plaintiff's failure to oppose a motion to stay the proceedings in violation of Local Rules 110, 183(a), and 230(c), and warning plaintiff that his failure to oppose the motion would be grounds for dismissal), Dkt. No. 28; Order, Aug. 19, 2009, at 3 (order setting a status conference in which the parties were warned: (1) "Failing to obey federal or local rules, or order of this court, may result in dismissal of this action"; (2) "Even though the court will construe pro se pleadings liberally, pro se litigants must comply with the procedural rules"; and (3) "the parties are cautioned that pursuant to Local Rule 78-230(c), opposition to granting of a motion must be filed fourteen (14) days preceding the noticed hearing date"), Dkt. No. 37; Order, Oct. 1, 2009, at 2 (resetting status conference and noting that the court had previously "cautioned that failure to obey the Federal Rules, Local Rules, or orders of the court could result in sanctions, including a recommendation that the case be dismissed"), Dkt. No. 40.)

Most recently, on September 16, 2011, the court granted the City of Sacramento's ("City") motion to compel plaintiff to attend his deposition in this case, a motion which the City filed after plaintiff's repeated failure to facilitate the taking of his deposition. (Order, Sept. 16, 2011, Dkt. No. 66.) In granting the City's motion to compel, the court provided plaintiff with the following warning:

Plaintiff is yet again warned that his failure to prosecute this action or his failure to comply with the Federal Rules of Civil Procedure, the court's orders, or the court's Local Rules will result in a recommendation that his entire action be involuntarily dismissed with prejudice. 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."), 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 ...


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