Hakop Jack Melkonyan v. Officer Stephen Santiago et al

Filing 29

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH PREJUDICE by Judge Cormac J. Carney: (see attached) (jm)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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HAKOP JACK MELKONYAN,
Plaintiff,

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v
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OFFICER STEPHEN SANTIAGO,
et al.,

No. CV 17-628 CJC(AJW)
MEMORANDUM AND ORDER
DISMISSING COMPLAINT
WITH PREJUDICE

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Defendants
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Plaintiff, proceeding pro se and in forma pauperis,filed this complaint pursuant to 42 U.S.0 § 1983.

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On September 25, 2017, defendants filed a motion for summary judgment.[Docket No.("Dkt.") 25]. The

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Court issued a briefing schedule which informed plaintiff of the requirements for opposing a motion for

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summary judgment. [Dkt. 27]. On September 28, 2017, the Court issued an amended briefing schedule

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providing plaintiff to and including October 25, 2017 in which to file and serve an opposition, and

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cautioning plaintiff that pursuant to Local Ru17-12, the Court may decline to consider any document not

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f within the deadline.[Dkt. 28]. As ofthe date of this order, plaintiff has neither filed an opposition to
iled

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the motion for summary judgment nor requested additional time within which to do so.

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It is well-established that a district court may dismiss an action for failure to prosecute, failure to
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ollow court orders, or failure to comply with the federal ar local rules. See Fed. R. Civ. P. 41(b); C.D.Cal. i

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L. R. 41-1; Link v. Wabash R.Co., 370 U.S. 626,629-630(1962); Ghazali v. Moran,46 F.3d 52, 53 (9th

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Cir.)(per curiam), cert. denied, 516 U.S. 838 (1995). In determining whether to dismiss a case for failure

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to prosecute or failure to comply with court orders or rules, a district court should consider the following

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five factors:(1)the public's interest in expeditious resolution of litigation;(2)the court's need to manage

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its docket;(3)the risk of prejudice to the defendants;(4)the availability of less drastic sanctions; and (5)

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the public policy favoring disposition ofcases on their merits. See In re Phenvlpropanolamine(PPA, Prod.

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Liability Liti~,460 F.3d 1217,1226-1228(9th Cir. 2006). Regardless ofwhether a litigant's conductis most

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properly characterized as a failure to prosecute or as a failure to comply with court orders or rules, the

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applicable standard is the same. ~e•~•,Southwest Marine Inc. v. Danzig, 217 F.3d 1128, 1138(9th Cir.
See

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2000)(failure to prosecute), cert. denied, 523 U.S. 1007(2001); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-

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1261 (9th Cir.)(failure to comply with orders), cert. denied,506 U.S. 915(1992); Care~g,856 F.2d

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1439, 1441 (9th Cir. 1988)(per curiam) (failure to comply with local rule).

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In this case, the first, second, and third factors favor dismissal. See Pagtalunan v. Galaza,291 F.3d

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639,642(9th Cir. 2002)(noting that the first factor —the public's interest in the expeditious resolution of

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litigation—"always favors dismissal")(quoting Yourish v. California Am nIiffier, 191 F.3d 983,990(9th Cir.

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1999)), cert. denied,538 U.S.909(2003); Edwards v. Marin Park,Inc., 356 F.3d 1058,1063-1065(9th Cir.

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2004)(discussing the second factor —the court's need to manage its docket —and stating that when a

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plaintiff does nothing,"resources continue to be consumed by a case sitting idly on the court's docket");

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In re Eisen, 31 F.3d 1447, 1452-1453 (9th Cir. 1994)(stating with regard to the third factor —the risk of

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prejudice —that in the absence of a showing to the contrary, prejudice to defendants or respondents is

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presumed from unreasonable delay).

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As to the fourth factor, plaintiff has been notified about his obligation to comply with court-ordered

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deadlines and the possible consequences offailing to do so. Specifically, plaintiff was informed that he is

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bound by the national and local rules.[Dkt. 20]. See C.D. Cal. Local R. 83-2.2.3(pro se litigants are bound

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by the national and local rules) ; C.D. Cal. L.R. 83-2.2.4 (a pro se litigant's failure to comply with the

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national and local rules may be grounds for dismissal or judgment by default). Both the national and local

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rules require plaintiff to file an opposition to a summary judgment motion. See,~.,Fed. R. Civ. P. 41(b)

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, 56; C.D. Cal. L.R. 7-9, 7-12, 41-1, 56-2. Plaintiff also was notified by the Court about the requirements
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for responding to a motion for summaryjudgment. See Rand v. Rowland, 154 F.3d 952, 960-961 (9th Cir.

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1998)
(en banc), cert. denied,527 U.S. 1035(1999); see also C.D. Cal. L.R. 56-2.[Dkt. 27]. Thus,plaintiff

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has been warned in more than one written order ofhis obligation to comply with the national and local rules

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and was on notice that ofthe possibility that noncompliance could lead to dismissal. See In re PPA Prod.

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Liability Litig„ 460 F.3d at 1229("Warning that failure to obey a court order will result in dismissal can

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itself meet the `consideration of alternatives' requirement.").'

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Finally, although the fifth factor —the public policy favoring disposition of cases on their merits —

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always weighs against dismissal, it remains a litigant's responsibility to comply with orders issued by the

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court and "to move towards that disposition at a reasonable pace, and to refrain from dilatory and evasive

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tactics." In re Eisen, 31 F.3d at 1454(quoting Morris v. Moran Stanley & Co.,942 F.2d 648,652(9th Cir.

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1991)). Plaintiff has not fulfilled that obligation.

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After considering the relevant factors, the Court finds that dismissal with prejudice is appropriate.

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See Scott v. Vasquez,2009 WL 4907031,at *8(C.D. Cal. Dec. 11,2009)(dismissing action with prejudice

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pursuant to Rule 41(b) where the plaintiff failed to file an opposition to defendants' motion for summary

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judgment). For the foregoing reasons, this action is dismissed with prejudice.

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It is so ordered.

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Dated: /~lov~.~.~.i Z7 Zv~7

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Cormac J. C ey
United Sta s District udge

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` A motion for summary judgment may not be granted based solely upon the failure to oppose
it. See, sme ., Heinemann v. Satterber~, 731 F.3d 914,916-917(9th Cir. 2013); C.D. Cal. L.R. 7-12.
Nevertheless, the failure to oppose a summaryjudgment motion may warrant dismissal under Rule
41(b). See Waller v. United States, 2014 WL 896718, at *2(C.D. Cal. Jan. 22, 2014)(dismissing
pursuant to Rule 41(b) based upon the plaintiffls failure to oppose a motion to dismiss, and
distinguishing Heinemann on the basis that the court was not making factual findings regarding the
merits ofthe plaintiffls claims); Scott v. Vasquez,2009 WL 4907031, at *6 n.6(C.D. Cal. Dec. 11,
2009)(dismissing pursuant to Rule 41(b) for failure to oppose a summary judgment motion, and
distinguishing between such a dismissal and the granting of a summary judgment motion).