United States District Court, S.D. California
WALTER J. BURCHER, JR.; J.J.B, a minor; SUSAN BURCHER Plaintiffs,
KIMBERLY LAWHEAD, et al., Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
[DOC. NO. 11]
A. HOUSTON UNITED STATES DISTRICT JUDGE.
originally filed this action on November 8, 2018, alleging
violations of their Fourth and Fifth Amendment rights under
42 U.S.C. §1983, and various state law claims. See
generally Doc. No. 1. On May 24, 2019, Defendant
Kimberly Lawhead moved to dismiss the Complaint for failure
to state a claim. Doc. No. 11. Pursuant to Civ. L. R.
7.1(e)(2) & (4), Plaintiffs' opposition to
Defendant's motion to dismiss was due to be filed and
served no later than June 14, 2019, based on the July 1,
2019, hearing date. See Civ. L. R. 7.1(e)(2) & (4). On
June 21, 2019, Defendant Kimberly Lawhead filed a Notice of
Lack of Opposition to Defendant's motion to dismiss. Doc.
seeks to dismiss the instant action for failure to state a
claim. Plaintiffs have filed no response to the motion.
Ninth Circuit has held that a district court may properly
grant a motion to dismiss as unopposed pursuant to a local
rule that permits, but does not require, the granting of a
motion for failure to respond. See generally,
Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)
(per curiam) (affirming dismissal for failure to
timely file opposition papers). Civil Local Rule 7.1 provides
that “each party opposing a motion ... must file that
opposition ... with the clerk ... not later than fourteen
(14) calendar days prior to the noticed hearing.” S.D.
Cal. Civ. Local Rule 7.1(e)(2). “If an opposing party
fails to file the papers in the manner required by Local Rule
7.1.e.2, that failure may constitute a consent to the
granting of that motion or other request for ruling by the
court.” S.D. Cal. Civ. Local Rule 7.1(f)(3)(a).
there is ... a [public] policy favoring disposition on the
merits, it is the responsibility of the moving party to move
towards that disposition at a reasonable pace, and to refrain
from dilatory and evasive tactics.” In re
Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994) (affirming
grant of motion to dismiss for failure to prosecute); see
also Steel v. City of San Diego, No. 09cv1743, 2009 WL
3715257, at *1 (S.D. Cal., Nov.5, 2009) (dismissing action
pursuant to Local Rule 7.1 for plaintiff's failure to
respond to a motion to dismiss).
instant motion to dismiss in this case contains proof of
service indicating that Plaintiffs were served with the
motion. Doc. No. 11-2. The motion to dismiss reflects that
the hearing for the motion was noticed for July 1, 2019. As
of the date of this Order, Plaintiffs have failed to file any
opposition to the motion to dismiss.
to granting an unopposed motion for dismissal, the Court must
weigh the following factors: “(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 (quoting Henderson v.
Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). The Ninth
Circuit has recognized that the first and fourth factors cut
in opposite directions. See Yourish v. California
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (first
factor always weighs in favor of dismissal); Hernandez v.
City of El Monte, 138 F.3d 393, 401 (9th Cir. 1998)
(fourth factor counsels against dismissal).
regard to the Ghazali factors, the Court will
address only the second, third, and fifth factors, as the
first and fourth factors cut in opposite directions. The
Court finds the second factor weighs in favor of dismissal,
as Plaintiffs failed to comply with one of the most basic
requirements of litigation and offers no excuse for failing
to respond to Defendant's motion to dismiss.
Additionally, the Court finds the third factor also weighs in
favor of dismissal, as significant delay in the resolution of
this matter prejudices Defendants. Based on the foregoing,
the Court finds the Ghazali factors weigh heavily in
favor of granting Defendant's motion to dismiss.
Plaintiffs Walter J. Burcher and Susan Burcher filed this
action listing their minor child, J.J.B., as a plaintiff. The
Court must then turn to the Federal Rules of Civil Procedure
(“Fed.R.Civ.P”) which govern who can sue and be
sued, and in what capacity. See generally Rule 17,
states that “an action must be prosecuted in the name
of the real party in interest, ” unless brought by a
duly appointed representative. Rule 17(a)(1), Fed.R.Civ.P.
“A minor person who does not have a duly appointed
representative may sue by a next friend or by a guardian ad
litem. The court must appoint a guardian ad litem--or issue
another appropriate order--to protect a minor or incompetent
person who is unrepresented in an action.” Rule
17(c)(2), Fed.R.Civ.P. “The [appointed representative]
must be truly dedicated to the best interests of the [minor]
on whose behalf he [or she] seeks to litigate, ” and
not motivated by any personal gain. Smith v. Adamas,
No. C 09-3764 PJH (PR), 2010 WL 458913, at *1 (N.D. Cal. Feb.
3, 2010). In any case, if the person attempting to bring suit
in federal court on behalf of the minor is the minor's
parent or guardian, the parent must retain a lawyer.
Tagle v. Clark Cty., 678 Fed.Appx. 600 (9th Cir.
2017) (emphasis added) (quoting Johns v. County of San
Diego, 114 F.3d 874, 877 (9th Cir. 1997) (a parent or
guardian cannot bring an action on behalf of a minor child
without retaining a lawyer); see also Fong Sik Leung v.
Dulles, 226 F.2d 74, 82 (9th Cir. 1995) ("[No]
asserted or actual parent[ ] may claim to be a guardian ad
litem of his minor child as a matter of right.”).
J.J.B lacks capacity as an infant to sue on his own behalf,
Walter J. Burcher and Susan Burcher acting alone also lack
the capacity to bring this action on behalf of their infant
child. The minor's interest must be represented by a
trained legal professional. See Johns, 114 F.3d at
877 (agreeing with Third Circuit rationale that minors are
entitled to trained legal assistance so their rights may be