United States District Court, S.D. California
ORDER DENYING WITHOUT PREJUDICE DEFENDANTS' MOTION TO DISMISS AND VACATING MOTION HEARING DATE [Dkt. No. 273.]
GONZALO P. CURIEL, District Judge.
On July 18, 2014, Defendants City of San Diego, Raymond Wetzel, County of San Diego, James Romo, Peter Myers and Joseph Cargel (collectively, "Defendants") filed a joint motion to dismiss the present action pursuant to Federal Rules of Civil Procedure 41(b), 37(b), and 37(d). (Dkt. No. 273.) Defendants argue Plaintiff failed to attend a properly noticed deposition in violation of a court order and seek dismissal of the above-captioned matter in its entirety. (Id.) The Court has issued two orders requiring Plaintiff to respond to the motion. (Dkt. Nos. 277, 282.) Plaintiff's deadline to file a response was September 5, 2014. (Dkt. No. 282.) On September 12, 2014, Plaintiff filed an opposition to Defendants' Motion to Dismiss. (Dkt. No. 287.) On September 16, 2014, Defendants County of San Diego and Joseph Cargel filed an objection to Plaintiff's opposition brief, requesting that this Court disregard Plaintiff's untimely opposition. (Dkt. No. 288.)
Since the filing of the present motion to dismiss, the Court has granted Defendants City of San Diego and Raymond Wetzel's motion for summary judgment on all claims against them in Plaintiff's Third Amended Complaint ("TAC"). (Dkt. No. 278.) In addition, the Court notes that Plaintiff's TAC claims against Defendants James Romo and Peter Meyers have also been dismissed on the merits. (Dkt. Nos. 221, 228.) In fact, of the twelve causes of action alleged against the various Defendants in Plaintiff's TAC, the current operative complaint, (Dkt. No. 64), only Plaintiff's twelfth cause of action against the County of San Diego and Joseph Cargel remains. (See Dkt. No. 156) (staying this Court's adjudication of Plaintiff's twelfth cause of action due to an ongoing criminal appeal proceeding under Younger abstention principles).
Because Defendants' motion was filed prior to dismissal of several of Plaintiff's claims, the motion fails to set forth authority under which this Court may dismiss either: 1) a stayed cause of action such as the twelfth cause of action as set forth in Plaintiff's Third Amended Complaint; or 2) a "cause of action" for declaratory relief, for failure to prosecute or failure to obey a court order. Although the Court has discretion to dismiss a case under Federal Rules of Civil Procedure ("FRCP") 41(b) for a plaintiff's failure to prosecute or comply with a court order, or under FRCP 37 for failure to comply with a Court order, the Court declines to do so at this juncture because the remaining cause of action in the above-captioned matter is currently stayed. Accordingly, Defendants' motion is DENIED.
CONCLUSION AND ORDER
For the foregoing reasons, the Court hereby DENIES WITHOUT PREJUDICE Defendants' motion to dismiss pursuant to FRCP 41(b), 37(b), and 37(d). Defendants may file a renewed motion to dismiss for failure to prosecute or failure to obey a court order if Defendants set forth legal authority under which the Court may grant such a motion while the remaining causes of action are stayed. Alternatively, Defendants may file a renewed motion once the stay is lifted.
Accordingly, the Court VACATES the motion hearing set for Friday, September ...