United States District Court, S.D. California
FLORENCE HARRIS, an individual; J.H. and J.H., as Minors by and through their Mother and Guardian FLORENCE HARRIS, Plaintiffs,
COUNTY OF SAN DIEGO; SAN DIEGO HEALTH AND HUMAN SERVICES AGENCY; POLINSKY CHILDRENS CENTER; DR. WENDY WRIGHT; NATASHA HALL, Social Worker; RADY CHILDREN'S HOSPITAL; DOES 1 through 20 Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITH
LEAVE TO AMEND [ECF NO. 6]
HONORABLE BARRY TED MOSKOWITZ, UNITED STATES DISTRICT JUDGE
the Court is Defendant County of San Diego's (“the
County”) motion to dismiss the Complaint, which was
scheduled for hearing on August 31, 2018. (ECF No. 6
(“MTD”).) Defendants Rady Children's Hospital
and Dr. Wendy Wright joined the County's motion. (ECF
Nos. 7, 9.) Plaintiff Florence Harris, on behalf of herself
and her two minor sons, J.H and J.H.
(“Plaintiffs”), filed a motion to continue the
hearing date on August 28, 2018, (ECF No. 14), which the
Court granted, (ECF No. 15.) Plaintiffs were given until
September 28, 2018 to oppose Defendants' motion to
dismiss, and the hearing date was reset for October 19, 2018.
(Id.) For the reasons discussed below, the Court
grants Defendants' motion to dismiss the Complaint with
leave to amend.
The Court May Grant an Unopposed Motion to Dismiss
have failed to respond to the motion to dismiss as of the
date of this Order, and the deadline passed months ago.
See CivLR 7.1.e.2 (providing that oppositions must
be filed “not later than fourteen calendar days prior
to the noticed hearing”). Civil Local Rule 7.1.f.3.c
provides, “[i]f an opposing party fails to file the
papers in the manner required by Civil Local Rule 7.1.e.2,
that failure may constitute a consent to the granting of a
motion or other request for ruling by the court.”
district court may grant an unopposed motion to dismiss
pursuant to a local rule permitting dismissal. See
Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)
(holding district court did not abuse discretion by summarily
granting unopposed motion to dismiss pursuant to local rule
that permitted but did not require dismissal). However, the
Court must consider the following factors before granting a
motion on that ground: “(1) the public's interest
in expeditious resolution of litigation; (2) the court's
need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions.” Ghazali, 46 F.3d at 53
(citing Henderson v. Duncan, 779 F.2d 1421, 1423
five factors weigh in favor of dismissal. “[T]he
public's interest in expeditious resolution of litigation
always favors dismissal.” Yourish v.
California Amplifier, 191 F.3d 983, 990 (9th
Cir. 1999). The Court must manage its docket, and there is no
risk of prejudice to Defendants, the moving parties. As for
the fourth factor, although public policy favors disposition
of cases on the merits, Plaintiff's failure to respond
precludes the parties' ability to move the case forward
and actually litigate the merits. This factor thus also
weighs in favor of dismissal.
the Court considers the availability of less drastic
sanctions. Plaintiffs initiated this action by filing the
Complaint on May 11, 2018. (ECF No. 1
(“Compl.”).) Defendants moved to dismiss the
Complaint for failure to state a claim on July 5, 2018.
(MTD.) Plaintiffs were properly served with the motion, but
have not filed any responsive pleading or otherwise
prosecuted the case. (See MTD; ECF No. 15.) Given
Plaintiffs' unexcused, extensive delay, the Court
concludes dismissal without prejudice is both warranted and a
less drastic sanction than dismissal with prejudice.
The Complaint Fails to State a Claim
Court further concludes that the Complaint fails to state a
claim upon which relief can be granted under Federal Rule of
Civil Procedure 12(b)(6). Federal Rule of Civil Procedure
12(b)(6) requires that the plaintiffs' complaint state a
“cognizable legal theory” or sufficient facts to
support a legal claim. Balistreri v. Pacifica Police
Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing
a motion to dismiss, the allegations of material fact in the
plaintiff's complaint are taken as true and construed in
the light most favorable to the plaintiff. Parks Sch. of
Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.
1995). Although detailed factual allegations are not
required, the factual allegations made “must be enough
to raise a right to relief above the speculative
level.” Bell Atlantic v. Twombly, 550 U.S.
544, 555 (2007). Only a complaint that states a plausible
claim for relief will survive a motion to dismiss.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Failure to Satisfy the Requirements of Fed.R.Civ.P.
Rule of Civil Procedure 8 requires that a complaint contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Each allegation should be “simple, concise,
and direct.” Fed.R.Civ.P. 8(d)(1). In other words, a
complaint must state “who is being sued, for what
relief, and on what theory, with enough detail to guide
discovery.” McHenry v. Renne, 84 F.3d 1172,
1178 (9th Cir. 1996).
the Complaint fails to satisfy the requirements of Rule 8.
The Complaint alleges violations under the Fourth and
Fourteenth Amendments of the U.S. Constitution, but it is
deficient in that it does not state with some degree of
particularity what overt acts were taken by each defendant in
violation of which Plaintiffs' rights. See Rasidescu
v. Midland Credit Mgmt., Inc., 435 F.Supp.2d 1090, 1099
(S.D. Cal. 2006) (setting forth basic pleading criteria,
required of all plaintiffs, including pro se plaintiffs).
Moreover, while the Complaint “also allege[s] a number
of state-law causes of action, ” (Compl., 2), it does
not describe how any act by any of the Defendants violated
Plaintiffs' rights under state law.
Failure to State a Claim Under ...