Smith v. Brangwynne
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
Defendants moved to dismiss the Second Amended Complaint, and the plaintiff, proceeding pro se, failed to file an opposition or respond to a notice of non-opposition. The court granted the motion to dismiss the complaint without prejudice and closed the case.
| What the court decided | The model |
|---|---|
Defendants' motion to dismiss the Second Amended Complaint is granted.“Accordingly, the majority of the Ghazali factors weigh in favor of dismissal. For the reasons stated above, it is hereby ORDERED that Defendants’ motion to dismiss the Second Amended Complaint [Doc. No. 31] is GRANTED.” | agree with court The court correctly applied the local rule regarding failure to oppose a motion, treating the plaintiff's inaction as consent to the motion. The court properly weighed the Ghazali factors, noting that the public interest in expeditious resolution, docket management, and prejudice to defendants favored dismissal. The dismissal was without prejudice, which is an appropriate sanction for procedural default that allows the plaintiff to refile if they wish, provided they comply with local rules. |
The Second Amended Complaint is dismissed without prejudice and the case is closed.“It is further ORDERED that the Second Amended Complaint is DISMISSED WITHOUT PREJUDICE. The Clerk of Court shall CLOSE the case.” | agree with court Dismissing without prejudice is the standard remedy for a failure to comply with local rules when the court deems the failure as consent to the motion. It preserves the plaintiff's right to refile while enforcing the court's procedural rules. |
The order itself: sound — The order is procedurally sound. It correctly identifies the local rule violation, cites the appropriate Ninth Circuit precedent for treating non-opposition as consent, applies the required multi-factor test, and imposes a sanction (dismissal without prejudice) that is consistent with the severity of the violation (failure to respond to a motion and a subsequent notice). The reasoning is concise and directly addresses the procedural default.
Opinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 DENNIS SMITH, Case No.: 19cv620-CAB-AHG 11 Plaintiff, ORDER GRANTING MOTION TO 12 v. DISMISS SECOND AMENDED COMPLAINT [Doc. No. 31] AND 13 DEPUTY K. BRANGWYNNE, et al., CLOSING CASE 14 Defendant. 15 16 On March 17, 2020, Defendants filed a motion to dismiss the Second Amended 17 Complaint (“Motion”). [Doc. No. 31.] The Motion was set for hearing (without oral 18 argument) on April 21, 2020. Id. Per Local Rule 7.1(e)(2), Plaintiff’s opposition to the 19 Motion should have been filed and served by April 7, 2020. To date, no opposition has 20 been filed. On April 13, 2020, Defendants filed Notice Re: No Opposition to 21 Defendants’ Motion to Dismiss (“Notice”), noting that Plaintiff had not filed or served 22 any opposition to the Motion. [Doc. No. 32.] Plaintiff has also not responded to the 23 Notice. 24 Civil Local Rule 7.1.e.2. requires a party opposing a motion to file an opposition or 25 statement of non-opposition within fourteen calendar days of the noticed hearing. Failure 26 to comply with these rules “may constitute a consent to the granting of a motion.” Civ. 27 Local R. 7.1.f.3.c. District courts have broad discretion to enact and apply local rules, 28 including dismissal of a case for failure to comply with the local rules. Ghazali v. Moran, 1 46 F.3d 52, 53 (9th Cir.1995) (affirming grant of an unopposed motion to dismiss under 2 local rule by deeming a pro se litigant’s failure to oppose as consent to granting the 3 motion). Before dismissing an action for failure to comply with local rules, the district 4 court “weigh[s] several factors: ‘(1) the public’s interest in expeditious resolution of 5 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 6 defendants; (4) the public policy favoring disposition of cases of their merits; and (5) the 7 availability of less drastic sanctions.’” Ghazali, 46 F.3d at 53 (quoting Henderson v. 8 Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)). That plaintiff is proceeding pro se in this 9 action does not excuse his failure to follow the rules of procedure that govern other 10 litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow 11 the same rules of procedure that govern other litigants.”). 12 Here, Defendants attached a proof of service to their motion [Doc. No. 31-2], 13 signaling that Plaintiff was served at the address provided in Plaintiff’s most recent filing 14 [Doc. No. 30]. Defendants also served Plaintiff with the Notice. [Doc. No. 32-1.] 15 However, Plaintiff has failed to respond to the Motion or the Notice. Moreover, Plaintiff 16 was provided adequate time to prepare a response to the motion, as Plaintiff’s opposition 17 was due April 7, 2020. Thus, the Court finds that “the public’s interest in expeditious 18 resolution of litigation,” “the court’s need to manage its docket,” and “the risk of 19 prejudice to the defendant” all weigh in favor of granting the motion to dismiss. See 20 Ghazali, 46 F.3d at 53. Accordingly, the majority of the Ghazali factors weigh in favor 21 of dismissal. 22 For the reasons stated above, it is hereby ORDERED that Defendants’ motion to 23 dismiss the Second Amended Complaint [Doc. No. 31] is GRANTED. It is further 24 ORDERED that the Second Amended Complaint is DISMISSED WITHOUT 25 / / / / / 26 / / / / / 27 / / / / / 28 / / / / / 1 |} PREJUDICE. The Clerk of Court shall CLOSE the case. 2 It is SO ORDERED. 3 ||Dated: April 24, 2020 € ZL 4 Hon. Cathy Ann Bencivengo 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28