United States District Court, E.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
(Doc. No. 27)
matter came before the court on defendants' motion to
dismiss for failure to state a claim. (Doc. No. 27.) A
hearing on the motion was held on December 17, 2019. Attorney
Kerry Margason appeared telephonically on behalf of
plaintiffs. Attorney Bruce Praet appeared telephonically on
behalf of defendants. Having reviewed the parties'
briefing and heard oral argument, and for the reasons set
forth below, the court grants defendants' motion to
action is the latest in a string of actions that plaintiffs
Lori and Richard Johnson (collectively,
“plaintiffs”) have filed against the City of
Atwater and its officials. On January 18, 2019, plaintiffs filed
this action in the Merced County Superior Court. (Doc. No. 1,
Ex. 1.) Defendants removed to this court on February 19,
2019, (Doc. No. 1), and filed a motion to dismiss
plaintiffs' complaint on March 11, 2019. (Doc. No. 4.)
Plaintiffs filed a motion to remand on May 18, 2019. (Doc.
No. 5.) Subsequently, the parties stipulated that plaintiff
would have an extension of time until May 9, 2019 to respond
to the motion to dismiss. (Doc. No. 11.)
9, 2019, plaintiffs filed a first amended complaint, a motion
for leave to file an amended complaint, and a notice of
withdrawal of their motion to remand. (Doc. No. 13.) On May
13, 2019, the motion to dismiss and motion for leave to file
an amended complaint were referred to the assigned magistrate
judge. (Doc. No. 16.) The assigned magistrate judge issued
findings and recommendations recommending (1) granting
defendants' motion to dismiss plaintiffs' complaint,
(2) granting plaintiffs' motion for leave to file an
amended complaint, and (3) disregarding plaintiffs' first
amended complaint (“FAC”) and ordering plaintiffs
to file a FAC addressing the identified deficiencies. (Doc.
No. 21 at 27.) Plaintiffs filed a subsequent FAC on September
25, 2019. (Doc. No. 26.) The FAC comprises two causes of
action: (1) unlawful and unreasonable search of a private
property in violation of the Fourth Amendment and California
Constitution; and (2) unreasonable and unlawful seizure of
private property in violation of the Fourth Amendment and
California Constitution. Defendants filed this motion to
dismiss on November 8, 2019. (Doc. No. 27.)
December 11, 2019, plaintiffs filed a statement of
non-opposition to the pending motion to
dismiss. (Doc. No. 29.) The court asked
plaintiffs' counsel at the hearing on the motion whether
plaintiffs opposed the court granting defendants' motion
to dismiss, and whether plaintiffs sought leave to amend.
Plaintiffs' counsel informed the court that plaintiffs
did not oppose the granting of defendants' motion to
dismiss with prejudice and without leave to amend because
they no longer wished to pursue this action. Accordingly,
defendants' motion to dismiss will be granted with
prejudice. See Hernandez v. Yuba Cmty. Coll. Dist,
No. S-06-1171 DFL GGH, 2006 WL 2655326, at *1 (E.D. Cal.
Sept. 15, 2006) (granting defendants' unopposed motions
to dismiss with prejudice).
reasons set forth above:
1. Defendant's motion to dismiss (Doc. No. 27) is granted
with prejudice and without leave to amend; and
2. The Clerk of the Court is directed to close this case.
 See Johnson v. City of
Atwater (“Johnson I”), no.
1:16-cv-01636-AWI-SAB (E.D. Cal.); Johnson v. City of
Atwater (“Johnson II”), no.
1:18-cv-00920-DAD-SAB (E.D. Cal.).
 Pursuant to Local Rule 230,
plaintiffs' opposition or non-opposition to
defendants' motion to dismiss was due December 3, 2019.
On December 6, 2019, the court staff contacted
plaintiffs' counsel inquiring whether counsel intended to
file an opposition to the pending motion and noting that any
untimely filings should be accompanied by a stipulation of
the parties or, if one was unavailable, an ex parte
application to extend or shorten time. Plaintiffs'
counsel replied on December 9, 2019, representing that an
opposition would be filed by end of the day without
explaining the delay in doing so. Nonetheless, on December
11, 2019, plaintiffs filed a notice of non-opposition to
defendants' motion to dismiss dated December 9, 2019.
(Doc. No. 29.)
 Federal Rule of Civil Procedure 41(a)
permits a plaintiff to voluntarily dismiss an action without
leave of court before service by the adverse party of an
answer or motion for summary judgment. The court also has the
authority to dismiss an action at the plaintiffs request by
court order and upon terms the court considers ...