United States District Court, E.D. California
DESMAL S. MATTHEWS, Plaintiff,
CALIBER HOME LOANS, et al., Defendants.
ORDER REQUIRING OPPOSITION AND RESETTING HEARING (ECF
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
December 9, 2019, Defendants removed this action from
Sacramento Superior Court.(ECF No. 1.) Defendants then moved to
dismiss, and set the matter for a hearing on January 16,
2020. (ECF No. 3.)
to this Court's Local Rules, Plaintiff was obligated to
file and serve a written opposition or statement of
non-opposition to the pending motion at least fourteen (14)
days prior to the hearing Dated: January 2, 2020.
See E.D. Cal. L.R. 230(c) (“Opposition, 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. 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. . . .”). The Court's
docket indicates that Plaintiff, who is proceeding without
counsel, failed to file a written opposition or statement of
non-opposition to the motion to dismiss.
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). Case law is in accord that a district court
may impose sanctions, including involuntary dismissal of a
plaintiff's case pursuant to 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). The Ninth Circuit
Court of Appeals had held that under certain circumstances a
district court does not abuse its discretion by dismissing a
plaintiffs case pursuant to Federal Rule of Civil Procedure
41(b) for failing to file an opposition to a motion to
dismiss. See, e.g., Trice v. Clark
County Sch. Dist., 376 Fed. App'x. 789, 790 (9th
Cir. 2010) (unpublished).
given Plaintiffs pro se status, the Court will not issue any
sanctions at this point. Instead, the Court will continue the
hearing on Defendants' motion to dismiss, and will
provide Plaintiff with an additional opportunity to respond
to Defendants' motion. Plaintiff is warned that further
failure to respond to Defendants' motion will be
construed as non-opposition to the motion, which may result
in dismissal of the case.
HEREBY ORDERED that:
hearing on Defendants' motion to dismiss (ECF No. 3),
which is presently set for January 16, 2020, is CONTINUED to
February 13, 2020, at 10:00 a.m., in Courtroom No. 25 before
Plaintiff shall file a written opposition to the motion for
judgment on the pleadings, or a statement of non-opposition
thereto, on or before January 30, 2020. Plaintiffs failure to
file a written opposition will be deemed a statement of
non-opposition to the pending motion and consent to the
granting of the motion, and shall constitute an additional
ground for the imposition of appropriate sanctions, including
a recommendation that Plaintiffs entire case be involuntarily
dismissed with prejudice pursuant to Federal Rule of Civil
Defendants may file a written reply to Plaintiff s
opposition, if any, on or before February 6, 2020; and
status conference, currently set for April ...