United States District Court, E.D. California
JEROME A. CLAY, Plaintiff,
AT&T UMBRELLA BENEFIT PLAN NO. 3, Defendant.
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
case arises from allegations that Defendant failed to pay
short term disability benefits to Plaintiff after an injury.
(ECF No. 43.) Plaintiff, proceeding pro se, asserts three
claims under the Employee Retirement Income Security Act
(“ERISA”). (See ECF Nos. 52, 55.)
January 30, 2019, the parties informed the Court that they
anticipated resolving the remaining claims on summary
judgment, and so proposed a briefing schedule. (ECF No. 65.)
The Court assented to this schedule and set a hearing for
September 12, 2019. (ECF No. 67.) In June, the parties
stipulated to extending the briefing schedule and resetting
the hearing because Defendant required more time to prepare
its brief and Plaintiff was then studying to take the July
2019 California bar exam. (ECF No. 70.) Finding good cause,
the Court again adopted the parties briefing schedule, which
is as follows: any motions for summary judgment would be due
by August 16; oppositions by September 13; replies by October
4; the hearing was reset to October 31, 2019. (ECF No. 70.)
filed its summary judgment motion on August 16. (ECF No. 71.)
Under the stipulated schedule, Plaintiff was obligated to
file and serve written opposition or a statement of
non-opposition by September 13. See E.D. Cal. L.R.
230(c) (stating that “[o]pposition, if any, to the
granting of the motion shall be in writing . . . . A
responding party who has no opposition to the granting of the
motion shall serve and file a statement to that effect,
specifically designating the motion in question.”).
Despite the parties' stipulated deadlines and the local
rules, Plaintiff failed to file a written opposition or
statement of non-opposition to Defendant's motion--much
less his own cross-motion for summary judgment. (See
also ECF No. 72, Defendant's “Notice of
Plaintiff's failure to file cross-motion for summary
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, judgment by
default, 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”) (overruled on
other grounds). A district court may impose sanctions,
including involuntary dismissal of a plaintiff's case
under 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”); 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 to
comply with any order of the court”); Thompson v.
Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th
Cir. 1986) (per curiam) (stating that district courts have
inherent power to control their dockets and may impose
sanctions including dismissal or default). Further, if
opposition to a motion has not been filed, Local Rule 230
allows for courts in this district to bar a party from being
heard as well as to construe the absent filing as
non-opposition to the motion. See L.R. 230(c).
of Plaintiff's failures, Defendant has requested the
Court grant summary judgment in its favor on Plaintiff's
three remaining claims. However, in light of Plaintiff's
pro se status,  and the fact that an extension was granted
for Defendant to file its motion, the Court will provide
Plaintiff with a final opportunity to respond to
Defendant's motion (or a statement of non-opposition).
See L.R. 230(c). Plaintiff is warned that under
Local Rule 230, “no party will be entitled to be heard
in opposition to a motion at oral arguments if opposition to
the motion has not been timely filed by that party[, and a]
failure to file a timely opposition may also be construed by
the Court as a non-opposition to the motion.” E.D. Cal.
L.R. 230(c). Further, given that the briefing schedule is one
proposed by Plaintiff himself, any future failure to follow
the Court's scheduling order and the local rules may
result in a Rule 41(b) dismissal. Hells Canyon, 403
F.3d at 689.
IT IS HEREBY ORDERED that:
1. Plaintiff shall file written opposition to Defendant's
motion for summary judgment, or a statement of non-opposition
thereto, on or before September 30, 2019, at 4:00 P.M.
Plaintiffs failure to to do so will be deemed a statement of
non-opposition to the pending motion and will result in
Plaintiff being precluded from being heard on these issues
raised in the summary judgment motion. Further, the Court
will consider sanctioning Plaintiff for failing to follow the
Court's orders, including a recommendation that
Plaintiffs entire case be involuntarily dismissed with
prejudice pursuant to Federal Rule of Civil Procedure 41(b);
2. Defendant may file a written reply to Plaintiff s
opposition, if any, on or before October 24, 2019; and
3. The hearing (see ECF No. 71) remains set for
October 31, 2019, at 10:00 A.M., in Courtroom 25.