United States District Court, E.D. California
ORDER VACATING HEARING AND REQUIRING PLAINTIFF TO
FILE OPPOSITION (OR NON-OPPOSITION)
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
case arises from allegations that Defendants violated
Plaintiff's Fourth and Fourteenth Amendment rights by
investigating an alleged false accusation that Plaintiff
committed child sex abuse, which resulted in plaintiff's
arrest, detention, and separation from his stepson. (See
generally ECF No. 46.) In the parties' joint status
report, and again at the August 22, 2019 status conference,
Defendants made known their intent to file a judgment on the
pleadings. (See ECF Nos. 81-83.) On September 17,
2019, Defendants did so file, and set the motion for an
October 24, 2019 hearing. (ECF No. 86.)
the Court's local rules, Plaintiff was obligated to file
and serve written opposition or a statement of non-opposition
by October 10. See E.D. Cal. L.R. 230(c) (stating
that “[o]pposition, if any, to the granting of the
motion shall be in writing and shall be filed and served not
less than fourteen (14) days preceding the noticed (or
continued) hearing date ..... 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 local rules,
Plaintiff failed to file a written opposition or statement of
non-opposition to Defendant's motion.
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 at the hearing, as well as to construe the absent
filing as non-opposition to the motion. See L.R.
Plaintiff has failed to timely file his opposition to
Defendants' motion, he has forfeited his right to be
heard at oral arguments on this matter. See L.R.
230(c). Given that Defendants have fully briefed the issues
raised, the Court vacates the hearing.
the Local Rules allow for Plaintiffs failure to file an
opposition to be construed as non-opposition to
Defendants' motion. See Id Further, case law
supports involuntary dismissal for failure to prosecute.
Hells Canyon, 403 F.3d at 689; Ferdik, 963
F.2d at 1260. However, in light of Plaintiff s pro se status
and a desire to resolve the issues on the merits, the Court
will provide Plaintiff with an additional opportunity to
respond to Defendants' motion (or file a statement of
non-opposition thereto). Any future failure to follow the
local rules will result in a Rule 41(b) dismissal.
IT IS HEREBY ORDERED that:
Plaintiff shall file written opposition to Defendant's
motion for judgment on the pleadings (ECF No. 86), or a
statement of non-opposition thereto, on or before October 31,
2019, at 4:00 P.M. Plaintiffs failure to do so will be deemed
a statement of non-opposition to the pending 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);
Defendant may file a written reply to Plaintiff s opposition,
if any, on or before November 7, 2019; and
hearing on Defendants' motion is vacated. The matter will
be taken under submission after all briefing has been
submitted. Should the Court require a hearing on this matter,
one will be scheduled at a later date.