Phan v. University & State Employees Credit Union

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 TAN PHAN, PhD, Case No.: 23-CV-75-W-BGS 10 Plaintiff, ORDER GRANTING MOTION TO 11 v. DISMISS AND GRANTING PLAINTIFF LEAVE TO AMEND 12 UNIVERSITY & STATE EMPLOYEES CREDIT UNION, a nonprofit corporation; 13 ROBERT AGUILERA, an individual; and 14 DOES 1 through 10, inclusive, 15 Defendants. 16 17 18 Pending before the Court is Defendants’ motion to dismiss Plaintiff Tan Phan, 19 Ph.D.’s Complaint, which Defendants removed to this Court (Doc. 2). Plaintiff failed to 20 respond in opposition. For the following reasons, the Court dismisses without prejudice 21 Plaintiff’s Complaint and grants Plaintiff leave to amend. 22 The Court’s Civil Local Rules provide that a party’s failure to oppose a motion as 23 required by Local Rule 7.1.e.2 “may constitute a consent to the granting of a motion or 24 other request for ruling by the Court.” CivLR 7.1.f.3.c. A district court may properly grant 25 a motion to dismiss for failure to respond in accordance with local rules. See generally 26 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming dismissal for 27 failure to file timely opposition papers where plaintiff had notice of the motion and ample 28 time to respond). A district court must consider five factors before dismissing for failure 1 to comply with local rules, “(1) the public’s interest in expeditions resolution of litigation; 2 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 3 the public policy favoring disposition of cases [on] their merits; and (5) the availability of 4 less drastic sanctions.” Id. 5 After this case’s removal to this Court, Defendants filed their motion to dismiss. 6 Subsequently, the Court granted the motion of Plaintiff’s counsel to withdraw from 7 representation of Plaintiff. (Doc. 9.) In that April 3, 2023, Order, the Court set a continued 8 briefing schedule on the motion to dismiss and ordered Plaintiff to file notice of her mailing 9 address for service of process. (Id. at 3–4.) Plaintiff failed to timely file notice of her 10 mailing address for service of process, and she has still not complied with that Order. 11 Plaintiff’s opposition to the motion to dismiss was due on or before May 22, 2023. (See 12 id. at 4.) Plaintiff did not file an opposition and has not requested additional time to do so. 13 Also, the Court ordered that Plaintiff’s former counsel of record in this case, 14 Mr. Christopher Monelt, serve a copy of the Order on Plaintiff and file proof of service. 15 (Id. at 3, ll. 23–27.) The docket shows that Plaintiff’s former counsel filed proof of such 16 service. (Docs. 10, 11.) There, counsel demonstrated that he served Plaintiff by e-mail 17 and U.S. mail on April 5, 2023, and that he provided her instructions to comply with the 18 Court’s order to file any opposition to the motion to dismiss before May 22, 2023, and to 19 file her mailing address of record before April 17, 2023, or risk dismissal of her case. (Doc. 20 11-1.) There is no evidence to suggest that Plaintiff did not know of her deadlines to 21 respond in opposition or to file her mailing address of record. There is also no evidence 22 that Plaintiff sought additional time to file. Plaintiff failed to comply with a Court order 23 that she provide her mailing address of record and failed to oppose the motion to dismiss. 24 On this record, the Court finds that the motion to dismiss is unopposed and that the five 25 factors support dismissal without prejudice. The Court therefore grants the motion. 26 However, because Plaintiff proceeds pro se, the Court concludes that leave to amend 27 the complaint should be granted. See Rosati v. Igbinosa, 791 F.3d 1037, 1039 (9th Cir. 28 2015) (“A district court should not dismiss a pro se complaint without leave to amend 1 unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by 2 ||amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Plaintiff 3 ||may amend her complaint on or before August 1, 2023. Plaintiff is also granted a 4 ||continuance to file notice of her address of record for service of process until August 1, 5 2023. 6 For the foregoing reasons, Defendants’ motion to dismiss (Doc. 2) is GRANTED. 7 Plaintiffs Complaint is DISMISSED WITHOUT PREJUDICE, and Plaintiff is 8 GRANTED LEAVE TO AMEND the Complaint on or before August 1, 2023. If 9 || Plaintiff fails to file an amended complaint, the Court may dismiss this case for failure to 10 || prosecute or for repeated failure to comply with Court order. The Court further ORDERS 11 || Plaintiff to file her mailing address of record for service of process on or before August 1, 12 ||2023. Finally, the Court instructs the Clerk to serve this Order on Mr. Christopher □□□□□□□ 13 || despite that he is no longer counsel of record, and to serve this Order on Plaintiff by U.S. 14 || mail to the last apparent mailing address of Plaintiff. (Doc. 8 at 3, 7.) 15 IT IS SO ORDERED. 16 Dated: June 14, 2023 \ [pe Lor 18 Hn. 1 omas J. Whelan 19 United States District Judge 20 21 22 23 24 25 26 27 28