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Jorgenson v. United States

United States District Court, E.D. California

December 9, 2019

PAUL JORGENSON, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT UNITED STATES BE DISMISSED FROM THIS ACTION WITH PREJUDICE BECAUSE OF PLAINTIFF'S FAILURE TO STATE A CLAIM AND BECAUSE OF PLAINTIFF'S FAILURE TO FOLLOW THIS COURT'S LOCAL RULES (ECF NO. 75)

         I. PROCEDURAL HISTORY

         Paul Jorgenson (“Plaintiff”) is a federal prisoner proceeding pro se and in forma pauperis in this action. This case now proceeds on Plaintiff's Second Amended Complaint, which was filed on July 12, 2018. (ECF No. 19). This case is proceeding on Plaintiff's FTCA claim against the United States, his Eighth Amendment Bivens claim against the four unknown correctional officers (“the Doe Defendants”), his state tort claims for medical negligence against Defendants Haak, Randhawa, and Emanuel Medical Center, and his state tort claims for battery against Defendants Haak and Emanuel Medical Center. (ECF No. 21, p. 2; ECF No. 95, p. 3).

         On April 25, 2019, defendant United States filed a motion for summary judgment, or in the alternative, judgment on the pleadings. (ECF No. 75). Plaintiff had twenty-one days after service of the motion to file and serve an opposition or a statement of no opposition. Local Rule 230(1). Plaintiff did not file an opposition or a statement of no opposition. On September 10, 2019, the Court gave Plaintiff an additional thirty days to file a response to defendant United States' motion. (ECF No. 90, p. 2). The extended deadline for Plaintiff to respond has passed, and Plaintiff has not filed an opposition or a statement of no opposition.

         Because Plaintiff failed to follow this Court's local rules, and because defendant United States' motion for judgment on the pleadings should be granted on the merits, the Court will recommend that defendant United States be dismissed from this action.[1]

         II. FAILURE TO FOLLOW LOCAL RULE 230(1)

         A. Legal Standards

         Under Local Rule 230(1), “[f]ailure of the responding party to file an opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion and may result in the imposition of sanctions.”

         “Failure to follow a district court's local rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Thus, a Court may dismiss an action for a plaintiff's failure to oppose a motion to dismiss, where the applicable local rule determines that failure to oppose a motion will be deemed a waiver of opposition. See Ghazali, 46 F.3d 52 (dismissal upheld even where plaintiff contended he did not receive motion to dismiss, where plaintiff had adequate notice, pursuant to Fed.R.Civ.P. 5(b), and time to file opposition). As a motion for judgment on the pleadings is “functionally identical to a Rule 12(b) motion to dismiss for failure to state a claim, differing only in that it is filed after pleadings are closed, ” a Court may dismiss an action for a plaintiff's failure to oppose a motion for judgment on the pleadings. See Hupp v. City of Beaumont, 2017 WL 2981232, at *3-4 (C.D. Cal. June 9, 2017), report and recommendation adopted, 2017 WL 2978750 (C.D. Cal. July 11, 2017) (internal quotation marks and citations omitted). Cf. Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013) (holding that a motion for summary judgment cannot be granted based on a failure to file opposition, regardless of any local rule to the contrary).

         “Before dismissing the action, the district court is required to weigh several 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 of 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)). “This ‘test' is not mechanical. It provides the district court with a way to think about what to do, not a set of conditions precedent for sanctions or a script that the district court must follow….” Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007).

         b. Analysis

         Plaintiff has failed to follow Local Rule 230(1). Plaintiff failed to respond to defendant United States' motion for judgment on the pleadings, despite being given ample opportunity to do so. Nevertheless, after weighing the factors, the Court finds that dismissal of the action is not appropriate. Instead, the Court will recommend that only defendant United States be dismissed from this action.

         “‘The public's interest in expeditious resolution of litigation always favors dismissal.'” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of dismissing the action.

         As to the Court's need to manage its docket, “[t]he trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest…. It is incumbent upon the Court to manage its docket without being subject to routine noncompliance of litigants....” Pagtalunan v. Galaza, 291 F.3d 639, 639 (9th Cir. 2002). As described above, Plaintiff failed to respond to defendant United States' motion, despite being given an additional opportunity to respond after the deadline passed. This repeated failure is interfering with docket management. Therefore, the second factor weighs in favor of dismissing the action.

         Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, “delay inherently increases the risk that witnesses' memories will fade and evidence will become stale, ” id. at 643, and Plaintiff's failure to respond to defendant United States' motion is delaying the resolution of this case. However, the delay caused by Plaintiff's failure has only been slight. Therefore, the third factor is neutral.

         Because public policy favors disposition on the merits, this factor weighs against dismissal. Id.

         As to the availability of lesser sanctions, the Court finds that a less drastic sanction than dismissal is available and is adequate to protect the Court from further unnecessary expenditure of its scare resources. As Plaintiff has failed to follow the local rules regarding opposing defendant United States' motion for judgment ...


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