(PC) Denham v. Sherman et al

Filing 56

ORDER DENYING 55 Plaintiff's Motion for 30-Day Extension of Time to Oppose Defendants' Motion to Dismiss, signed by Magistrate Judge Christopher D. Baker on 5/23/2023. Plaintiff shall file his opposition to Defendants' motion to dismiss no later than June 1, 2023, as previously ordered. No further requests for an extension of time as it concerns Defendants' motion to dismiss will be entertained. (Rivera, O)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

PAUL JOHN DENHAM,

12
13
14

Plaintiff,
v.

Case No. 1:20-cv-01645-ADA-CDB (PC)
ORDER DENYING PLAINTIFF’S
MOTION FOR 30-DAY EXTENSION OF
TIME TO OPPOSE DEFENDANTS’
MOTION TO DISMISS

S. SHERMAN, et al.,
(Doc. 55)

15

Defendants.

16
17

I.

PROCEDURAL BACKGROUND

18

On June 24, 2022, Defendants filed a Motion to Dismiss Plaintiff’s Fourteenth

19

Amendment Claim, Conspiracy to Violate Civil Rights Claim, and State-Law Negligence Claim

20

in the First Amended Complaint. (Doc. 23.)

21
22
23

On July 7, 2022, Plaintiff filed a motion to stay Defendants’ motion to dismiss until the
Court had completed screening of his first amended complaint. (Doc. 24.)
On July 13, 2022, the Court issued its Order Denying Plaintiff’s Motion to Stay and Order

24

Directing Plaintiff to File Response to Defendants’ Motion to Dismiss, or, in the Alternative, to

25

File a Second Amended Complaint. (Doc. 25.)

26

On July 21, 2022, the Court granted Plaintiff’s request for a 90-day extension of time

27

within which to file a response to the motion to dismiss, or, alternatively, to file a second

28

amended complaint. (Doc. 27.)

1

On October 19, 2022, the Court granted Plaintiff’s second request for a 90-day extension

2

of time within which to respond to Defendants’ motion to dismiss. (Doc. 32.) Plaintiff was

3

expressly provided an extension of time to oppose Defendants’ motion to dismiss; Plaintiff was

4

not provided with the alternative of filing a second amended complaint. (Id.)

5

On January 17, 2023, the Court granted Plaintiff’s third request for a 90-day extension of

6

time within which to respond to Defendants’ motion to dismiss. (Doc. 36.) This order too did not

7

provide Plaintiff with the alternative of filing a second amended complaint. (Id.)
On April 14, 2023, the Court issued its Order Granting in Part Plaintiff’s Fourth Request

8
9

for an Extension of Time to Oppose Defendants’ Motion to Dismiss. (Doc. 46.) Plaintiff was

10

ordered to file a response to Defendants’ motion to dismiss “no later than Thursday, June 1,

11

2023 ….” (Id. at 3, emphasis in original.) Further, Plaintiff was warned “[t]he Court disfavors the

12

filing of any further requests for extension of time.” (Id.)

13
14

On May 22, 2023, Plaintiff filed a request for a 30-day extension of time to file his
opposition to Defendants’ motion to dismiss. (Doc. 55.)

15

II.

DISCUSSION
Plaintiff’s Request of May 22, 2023

16
17

In his most recent request, Plaintiff states he filed a motion for leave to file a second

18

amended complaint on May 3, 2023, and that his second amended complaint “addresses pleading

19

defects that Defendants raised in their motion to dismiss.” (Doc. 55 at 1-2.) He states Defendants

20

“have a right to oppose” his motion and he has “a right to reply.” (Id. at 2.) He contends the

21

Court’s ruling on his motion for leave to file a second amended complaint “is not possible …

22

before June 1, 2023,” the current deadline for the filing of Plaintiff’s opposition to Defendants’

23

motion to dismiss and notes that if the Court grants his motion for leave to file an amended

24

complaint “it will render moot [his] need to oppose Defendants’ motion to dismiss.” (Id.) Plaintiff

25

further asserts that to “avoid defaulting on the Court’s April 14, 2023 order requiring [his]

26

opposition,” he is seeking a 30-day extension of time “to file an opposition – if necessary.” (Id.)

27

//

28

//
2

1
2

The Bases for the Court’s Denial of Plaintiff’s Request
District courts have the inherent authority to control their dockets. Chambers v. NASCO,

3

Inc., 501 U.S. 32, 43 (1991); see also Yong v. I.N.S., 208 F.3d 1116, 1119 (9th Cir. 2000). That

4

same power provides for the imposition of sanctions, including dismissal of an action for a failure

5

to comply with a court order. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).

6

Here, Defendants’ motion to dismiss the first amended complaint has been pending on this

7

Court’s docket for nearly a year. Plaintiff has been previously afforded generous extensions of

8

time to respond to the pending motion to dismiss. In fact, Plaintiff was initially afforded the

9

alternative of filing a second amended complaint on two previous occasions (see Docs. 25 & 27),

10

however, he elected not to do so. In its October 19, 2022, January 11, 2023, and April 14, 2023

11

orders, the Court extended to Plaintiff additional time within which to file an opposition to

12

Defendants’ motion to dismiss. As Plaintiff acknowledges in his pending motion for leave to

13

amend (Doc. 53, Section II “Procedural History,” at pp. 4-5), none of those orders afforded

14

Plaintiff the alternative of filing a second amended complaint (see Docs. 32, 36 & 46).

15

On May 3, 2023, Plaintiff filed a motion for leave to file a second amended complaint.

16

(Doc. 53.) Pursuant to this Court’s Local Rule 230(l), Defendants have twenty-one days within

17

which to file an opposition or statement of non-opposition to Plaintiff’s motion. Hence,

18

Defendants’ opposition or statement of non-opposition is due May 24, 2023.

19

Returning to Plaintiff’s request for a 30-day extension of time to oppose Defendants’

20

motion to dismiss, the Court finds Plaintiff has not established good cause for any further

21

extension of time. Rather, the Court finds Plaintiff’s election not to file an opposition to

22

Defendants’ motion to dismiss—and to instead file a motion seeking leave to file a second

23

amended complaint more than six months after he was last provided the opportunity to do so as

24

an alternative to filing an opposition—was a tactical decision not amounting to good cause

25

warranting an extension of time. Plaintiff’s strategy or tactics sound in bad faith, but, at bottom,

26

reflect at least a lack of diligence.

27
28

Likewise, through Plaintiff has been afforded numerous extensions of time within which
to oppose Defendants’ motion to dismiss, he instead has chosen to use that time to prepare and
3

1

file several other motions, to wit: a motion to proceed in forma pauperis, a motion for

2

appointment of counsel, a motion for sanctions against defense counsel, and a motion for

3

reconsideration. (See Docs. 40, 42, 44 & 47.) Additionally, Plaintiff filed a petition for writ of

4

mandate with the Ninth Circuit Court of Appeals during that same period. (See Doc. 39.) It is

5

plain Plaintiff could have readily opposed Defendants’ motion to dismiss. That his tactical or

6

strategic decision to delay opposing the motion to dismiss that has been pending for some eleven

7

months will not bear fruit also does not equate to good cause or otherwise warrant an extension of

8

time.

9
10

III.

CONCLUSION AND ORDER

Plaintiff has failed to establish good cause warranting any further extension of time.

11

Plaintiff request for a 30-day extension of time within which to oppose Defendants’ motion to

12

dismiss (Doc. 55) is HEREBY DENIED. Plaintiff shall file his opposition to Defendants’

13

motion to dismiss no later than June 1, 2023, as previously ordered. No further requests for

14

an extension of time as it concerns Defendants’ motion to dismiss will be entertained.

15

The Court awaits further briefing on both Defendants’ motion to dismiss (Doc. 23) and

16

Plaintiff’s motion for leave to file a second amended complaint (Doc. 53). Once briefing is

17

complete, both matters will be deemed submitted and findings or orders will issue in due course.

18

Plaintiff is advised that a failure to obey this Court’s orders will result in a

19

recommendation that this action be dismissed for Plaintiff’s failure to obey courts order

20

and to prosecute this action.

21

IT IS SO ORDERED.

22
23

Dated:

May 23, 2023

___________________

_

UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28
4