Monte et al v. Lodi et al

Filing 30

MEMORANDUM and ORDER signed by District Judge Morrison C. England, Jr on 7/5/2018 DENYING without prejudice Plaintiffs' 23 Motion for Substitution; Plaintiffs are DIRECTED to refile that Motion within 5 days, should they choose to do so. Defen dants' 28 Motion to Dismiss is GRANTED for the same reasons articulated in the Court's original 20 Memorandum and Order; Phil's causes of actions against Defendants Lado and Freeman are DISMISSED without leave to amend. (Fabillaran, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY MONTE; PHIL MONTE;
and PATRICIA MONTE,
Plaintiffs,

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v.

No. 2:17-cv-00411 MCE DB

MEMORANDUM AND ORDER

CITY OF LODI; LODI POLICE
DEPARTMENT; OFFICER B.
FREEMAN, badge 14; OFFICER J.
LADO, badge 101; AUSTIN BLYTHE,
badge 36; and DOES 1 through 25,
inclusive,
Defendants.

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On February 23, 2017, Plaintiffs Anthony Monte, Phil Monte, and Patricia Monte

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filed a complaint alleging violations of 42 U.S.C. § 1983 and containing pendent state-

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law claims, arising from Anthony Monte’s February 26, 2016, arrest for violating

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California Vehicle Code § 23152 (DUI), and California Penal Code § 834a (resisting

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arrest). Compl., ECF No. 1. Defendants City of Lodi, also sued as Lodi Police

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Department, and Officers Brian Freeman, Jordan Lado, and Austin Blythe moved to

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dismiss Plaintiffs’ complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Mot.

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Dismiss, ECF No. 11. The Court granted in part and denied in part that Motion, but

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permitted Plaintiffs leave to amend and directed that Plaintiffs simultaneously file a

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motion to substitute a proper Plaintiff in Patricia’s stead. ECF No. 20.
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Plaintiffs timely filed both documents, but the Motion to Substitute Plaintiff was

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deficient as filed, and they were directed that it must be renoticed. ECF No. 24.

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Plaintiffs failed to renotice that Motion, however, and Defendants Freeman and Lado

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subsequently filed a Motion to Dismiss Phil’s causes of action against them.1 ECF

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No. 28. Plaintiffs have not filed an opposition or statement of opposition to that Motion.2

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Plaintiffs’ Motion for Substitution as Plaintiff (ECF No. 23) is DENIED without

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prejudice to refiling in compliance with the applicable rules and orders of the Court. Not

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later than five (5) days following the date this Order is electronically filed, Plaintiffs are

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directed to refile that Motion, should they choose to do so, in compliance with the

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applicable rules and orders of the Court. If no such Motion is timely filed, the causes of

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action brought on behalf of Patricia will be dismissed without leave to amend upon no

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further notice to the parties.

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Defendants’ Motion to Dismiss (ECF No. 28), which again Plaintiffs have not

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opposed, is GRANTED for the same reasons articulated in the Court’s original

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Memorandum and Order (ECF No. 20). Plaintiffs have not added any material facts to

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their amended complaint that compel a different result. Because the Court has no doubt

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Plaintiffs would have included any such facts if they could, Phil’s causes of actions

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against Defendants Lado and Freeman (the Third and Fourth causes of action in the

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operative complaint) are DISMISSED without leave to amend.

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IT IS SO ORDERED.
Dated: July 5, 2018

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Because oral argument would not have been of material assistance, the Court ordered this
matter submitted on the briefs pursuant to E.D. Cal. Local Rule 230(g).
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This is not Plaintiff’s first time failing to comply with the Local Rules requiring a response to a
noticed motion. See ECF No. 12. Any future failure by Plaintiffs will result in the imposition of sanctions
upon no further notice to the parties.

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