Foy v. Meece

Filing 12

ORDER to SHOW CAUSE signed by Magistrate Judge Kendall J. Newman on 4/8/13 ORDERING plaintiff to Show Cause in writing by 5/1/2013 and explain why sanctions should not be imposed for failure to prosecute and failure to respond to motion. Motion Hearing as to 9 Motion to Dismiss is reset for 5/23/2013 at 09:00 AM in Courtroom 25 (KJN) before Magistrate Judge Kendall J. Newman. Opposition to motion due by 5/1/13; reply due by 5/9/13. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TYRELL FOY,

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Plaintiff,

No. 2:12-cv-02797 GEB KJN PS

v.

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OFFICER STEPHEN MEECE,

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Defendant.
______________________________/

ORDER TO SHOW CAUSE

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On March 11, 2013, defendant Stephen Meece (“defendant”) filed a motion to

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dismiss plaintiff’s complaint and noticed that motion for a hearing to occur on April 18, 2013.1

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(Mot. to Dismiss, Dkt. No. 9.) Under this court’s Local Rules, plaintiff was obligated to file and

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serve a written opposition or statement of non-opposition at least fourteen days prior to the

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noticed hearing date; such an opposition or statement of non-opposition was due on or before

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April 4, 2013.2 See E.D. Cal. L.R. 230(c). The court’s electronic docket reveals that plaintiff

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failed to timely complete such filing and that, to date, plaintiff has not filed any response to

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defendant’s pending motion to dismiss.

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This case proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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Local Rule 230(c) also provides that “[n]o party will be entitled to be heard in
opposition to a motion at oral arguments if opposition to the motion has not been timely filed by
that party.”

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Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to

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comply with these Rules or with any order of the Court may be grounds for imposition by the

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Court of any and all sanctions authorized by statute or Rule or within the inherent power of the

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Court.” Moreover, Local Rule 183(a) provides, in part:

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Any individual representing himself or herself without an attorney is
bound by the Federal Rules of Civil or Criminal Procedure, these Rules,
and all other applicable law. All obligations placed on “counsel” by these
Rules apply to individuals appearing in propria persona. Failure to comply
therewith may be ground for dismissal.

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In light of the foregoing, IT IS HEREBY ORDERED that:

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1.

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The hearing on defendant’s motion to dismiss, which is presently set for

April 18, 2013, is continued to May 23, 2013.
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No later than May 1, 2013, plaintiff shall file a document showing cause

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in writing and explaining why sanctions, including dismissal of his lawsuit, should not be

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imposed for plaintiff’s failure to prosecute and failure to file an opposition or statement of non-

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opposition to the pending motion. See Fed. R. Civ. P. 41(b); E.D. Cal. L.R. 110, 183(a); see

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Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (stating that a court “may act sua sponte to

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dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. Forest Serv.,

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403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant to

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Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply

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with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.

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1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground for

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dismissal.”); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the

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same rules of procedure that govern other litigants.”); Thompson v. Housing Auth. of City of

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L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have inherent

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power to control their dockets and may impose sanctions including dismissal). Failure to file the

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required writing shall constitute an additional ground for the imposition of appropriate

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sanctions, including dismissal.
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No later than May 1, 2013, plaintiff shall also file a written opposition or

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statement of non-opposition to defendant’s pending motion to dismiss. Failure to file a written

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opposition shall be deemed a statement of non-opposition, and shall constitute an additional

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ground for the imposition of appropriate sanctions, including dismissal.

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4.

Defendant may file a reply to plaintiff’s opposition, if needed, on or before

May 9, 2013.
IT IS SO ORDERED.
DATED: April 8, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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