Pardo v. The County of San Diego

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO S. PARDO, M.D.; Case No.: 24-CV-1062 JLS (SBC) RICARDO JOAQUIN; FRANCISCO 12 ORDER CLARIFYING PARDO; MARIA-AMELIA PARDO; and PLAINTIFFS’ FILING 13 VICTOR PARDO, OBLIGATIONS 14 Plaintiffs, (ECF No. 9) 15 v. 16 THE COUNTY OF SAN DIEGO; REINA 17 LOPEZ; THOMAS RUFF; LONNIE LAU; KIM GIARDIA; DHHS 18 DIRECTOR; NICK MACCHIONE; and 19 DOES 1–50, 20 Defendants. 21 22 Presently before the Court are Defendant County of San Diego’s (“County”) Motion 23 to Dismiss Plaintiffs’ First Amended Complaint (“Mot.,” ECF No. 9) and its Memorandum 24 of Points and Authorities in Support thereof (“Mem.,” ECF No. 9-1). Plaintiffs failed to 25 oppose the Motion on October 3, 2024, as required by Civil Local Rule 7.1(e)(2), see 26 generally Docket, and the County filed a Notice of Plaintiff’s non-opposition to the Motion 27 on October 10, 2024. See ECF No. 10 (“Not.”). The same day the County filed its Notice, 28 Plaintiffs filed an Opposition to the Motion to Dismiss (“Opp’n,” ECF No. 12) and a 1 Supplemental Opposition to the Motion to Dismiss (“Suppl. Opp’n,” ECF No. 13). 2 In their Opposition, Plaintiffs state that they “never received the Motion” and only 3 became aware of it because the County filed its Notice. Opp’n at 2. In their Supplemental 4 Opposition, Plaintiffs add that the County appears to have served its Motion on Plaintiffs 5 using the wrong email address; thus, Plaintiffs’ ignorance. Suppl. Opp’n at 1.1 Because 6 of this oversight, Plaintiffs “request that this motion be reset.” Id. at 2. 7 Plaintiffs’ excuse is less than convincing. This is not the first time Plaintiffs failed 8 to oppose a motion. The County initially moved to dismiss Plaintiffs’ original Complaint, 9 ECF No. 4, and Plaintiffs did not file an opposition then either. See generally Docket. The 10 Court granted the County’s first Motion to Dismiss pursuant to Local Rule 7.1(f)(3)(c), but 11 it granted Plaintiffs leave to file an amended complaint. ECF No. 7 at 4. Plaintiffs did 12 indeed receive notice of this docket entry and filed their Amended Complaint in a timely 13 manner. See First Amended Complaint (“FAC”), ECF No. 8. Interestingly, the County 14 attached a Declaration of Service with their first Motion to Dismiss, which, like the second 15 Motion to Dismiss, contained a clerical error when transcribing Plaintiffs’ counsel’s email 16 address. See ECF No. 4-4 at 1. If Plaintiffs had actually suffered from a notice deficiency 17 related to the first Motion to Dismiss, one might think that they would have resolved their 18 concerns at that time. But they declined to raise the issue. 19 One might also think that Plaintiffs would have maintained internal notes indicating 20 when a response to the Complaint or Amended Complaint would have been due. The 21 timeline for filing a responsive pleading is no mystery—even a novice attorney would 22 know that the timeline for responding to an initial complaint is prescribed by Federal Rule 23 of Civil Procedure 12(a) and the timeline for responding to an amended complaint is 24 prescribed by Federal Rule of Civil Procedure 15(a). So it should have hardly been a 25 surprise to Plaintiffs that the County would be filing a responsive pleading of some sort to 26 27 1 Plaintiffs attached the Declaration of Service that the County contemporaneously filed with its Motion, which indicated an email address for Plaintiff of joelacostaesq@,gmail.com. ECF No. 9-4. This appears 28 1 both the Complaint and the Amended Complaint. But, in the case of the Amended 2 Complaint, Plaintiffs claim to have been caught completely off guard. 3 All the more troubling are the Notices of Electronic Filing (“NEF”) that are 4 automatically generated by the Court’s docket management system, CM/ECF. According 5 to the NEF receipts for both the County’s first Motion to Dismiss and second Motion to 6 Dismiss, the NEF was electronically mailed to Plaintiffs’ counsel at 7 joelacosta@hotmail.com. See ECF Nos. 4, 9. Under Southern District of California Local 8 Rule 5.4(c), “[t]he NEF that is automatically generated by the Court’s Electronic Filing 9 System constitutes service of the filed document on Filing Users.” And under Local Rule 10 5.4(d), “[r]egistration as a Filing User constitutes consent to Electronic Service of all 11 documents . . . .” Despite the apparent typo in counsel’s email address on the Declarations 12 of Service filed by the County, the Declarations also clearly indicate that service was 13 effected through CM/ECF, which obviates the need to attach the Declarations at all. See 14 S.D. Cal. CivLR 5.4(c) (“A certificate of service is not required when a party electronically 15 files a document on other Filing Users with the Court’s Electronic Filing System . . . .”). 16 So the Court is inclined to agree with the County’s contention that the typos were 17 “inconsequential.” See ECF No. 14 at 2. 18 In sum, the Court is highly skeptical of Plaintiffs’ assertion that they did not receive 19 notice of the County’s Motion to Dismiss Plaintiffs’ First Amended Complaint. Despite 20 the Court’s temptation to dismiss this case with prejudice for Plaintiffs’ repeated failure to 21 oppose the County’s Motions to Dismiss, the Court will grant Plaintiffs one more 22 opportunity to oppose the County’s Motion. Given that Plaintiffs have already been on 23 actual notice of the Motion for at least two weeks and the Court’s preference for disposing 24 of cases on their merits, Plaintiffs SHALL FILE an opposition to the County’s Motion to 25 Dismiss Plaintiffs’ First Amended Complaint (ECF No. 9) within five (5) days of the date 26 on which this Order is electronically docketed. Along with their opposition, Plaintiffs also 27 SHALL FILE a more detailed explanation for their failure to oppose the Motion not to 28 exceed five (5) pages by the same deadline. Should Plaintiffs fail to oppose the Motion or 1 || provide justification for their multiple filing failures, the Court will dismiss this civil action 2 ||based on Plaintiffs’ failure to prosecute in compliance with a court order requiring a 3 ||response. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Assuming 4 || Plaintiffs file an opposition, the County MAY FILE a reply within seven (7) days of the 5 || filing. 6 IT IS SO ORDERED. 7 ||Dated: October 25, 2024 , tt g pee Janis L. Sammartino 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28