IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 12, 2011
RONALD NOONER AND PAMELA NOONER, PLAINTIFFS,
EL DORADO UNION HIGH SCHOOL DISTRICT, ET AL., DEFENDANTS.
On October 3, 2011, defendant El Dorado Union High School District noticed a motion to dismiss to be heard on November 9, 2011. (ECF 6.) Plaintiffs failed to submit a timely opposition or statement of non-opposition to defendant's motion. See Local Rule 230(c). On November 3, 2011, this court ordered plaintiffs to show cause why this action should not be dismissed for failure to prosecute. Later that day, plaintiffs' counsel submitted a response to the order to show cause wherein he took full responsibility for plaintiffs' failure to file an opposition brief or statement of non-opposition and stated that he mistakenly believed he was not required to oppose the motion. (ECF 12.)
Local Rule 230(c) requires that a party file either an opposition or statement of non-opposition to an adverse motion. Federal Rule of Civil Procedure 41(b) allows a court to dismiss cases where a plaintiff fails to diligently prosecute. "Before imposing dismissal as a sanction, the district court must weigh several factors: the public's interest in expeditious resolution of litigation; the court's need to manage its docket; the risk of prejudice to the defendants; the public policy favoring disposition of cases on their merits; and the availability of less drastic sanctions." Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996). Where, as here, the failure is attributable to the negligence of the attorney, dismissal is inappropriate. Id. (dismissal was inappropriate where, among other considerations, "dismissal severely penalized plaintiffs for their counsels' bad behavior"). A lesser sanction is appropriate, however. Plaintiff's counsel is ordered to pay $150 to the clerk of court within seven days of this order. Upon payment, the order to show cause shall be discharged.
The hearing on defendant's motion is hereby moved to February 10, 2012. If plaintiffs wish to be heard in opposition to defendant's motion, an opposition brief must be filed within the time specified in Local Rule 230. Plaintiffs' counsel is advised to familiarize himself with the Local Rules in order to avoid further sanctions.
IT IS SO ORDERED.
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