United States District Court, E.D. California
LEON DAVIS JR. Plaintiff,
DEPARTMENT OF VETERANS AFFAIRS-VETERAN BENEFITS ADMINISTRATION, et al. Defendants.
ORDER (ECF NO. 6)
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
case arises from an employment discrimination case brought
against Defendant by Plaintiff, an employee of the Department
of Veterans Affairs. (See ECF No. 1.) Defendant has
moved to dismiss all of Plaintiff's claims, and set a
hearing on the motion for November 7, 2019. (ECF No. 6.)
the briefing schedule, Plaintiff was obligated to file and
serve written opposition or a statement of non-opposition by
October 24. 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.
in light of Plaintiff's pro se status, the Court will
provide Plaintiff with an additional opportunity to respond
to Defendant's motions (or file a statement of
non-opposition thereto). 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, any future failure to follow the Court's
scheduling order and the local rules may result in the Court
construing Plaintiff's absent filing as non-opposition to
Defendant's motion, as well as a Rule 41(b) dismissal.
Hells Canyon, 403 F.3d at 689.
if Plaintiff determines that he is unable to submit an
opposition in accordance with his obligations under Federal
Rule of Civil Procedure 11, he may alternatively file a
notice of voluntary dismissal of his claims without prejudice
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) by
November 7, 2019. However, if Plaintiff elects to proceed
with this action in federal court, he is encouraged to
familiarize himself with this court's Local Rules
and the Federal Rules of Civil Procedure. Although the court
is sympathetic to the difficulties faced by pro se litigants
in litigating their cases in federal court, and liberally
construes their pleadings, pro se litigants are expected to
comply with all procedural rules and court orders.
IT IS HEREBY ORDERED that:
Plaintiff shall file written opposition to Defendant's
motion to dismiss, or a statement of non-opposition thereto,
on or before November 7, 2019, at 4:00 P.M. Plaintiff's
failure 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
motion to dismiss. Further, the Court will consider
sanctioning Plaintiff for failing to follow the Court's
orders, and may consider recommending that Plaintiff's
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 14, 2019; and
hearing on Defendant's motion to dismiss is reset to
November 21, 2019, at 10:00 A.M. in Courtroom 25.