(PS) Powell v. USA

Filing 5

ORDER signed by Magistrate Judge Carolyn K. Delaney on 02/06/24 VACATING the 02/21/24 Motion to Dismiss Hearing and DIRECTING the Plaintiff to file, within 14 days after service of this order, a written opposition or statement of non-opposition to 3 Motion to Dismiss. (Licea Chavez, V)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHANNON R. POWELL, 12 Plaintiff, 13 14 No. 2:24-cv-00030-DAD-CKD (PS) ORDER v. UNITED STATES OF AMERICA, et al., 15 Defendants. 16 17 Plaintiff, who proceeds without counsel, initiated this action with a complaint filed in the 18 Sacramento County Superior Court. (See ECF No. 1.) On January 4, 2024, defendant, the United 19 States of America, removed the case to this court. (Id.) This matter is before the undersigned 20 pursuant to 28 U.S.C. § 636(b)(1) and E.D. Cal. Local Rule 302(c)(21). 21 On January 12, 2024, defendant filed a motion to dismiss for lack of subject matter 22 jurisdiction or, in the alternative, for failure to state a claim. (ECF No. 3.) The motion was set for 23 a hearing to take place on February 21, 2024. (Id.) 24 Under the court’s Local Rules, plaintiff was to respond to defendant’s motion no later than 25 14 days after the motion was filed. See E.D. Cal. L.R. 230(c) (“Opposition, if any, to the granting 26 of the motion shall be in writing and shall be filed and served not less than fourteen (14) days 27 after the motion was filed.”). Plaintiff has not filed an opposition to the pending motion. 28 //// 1 1 “Failure of counsel or of a party to comply with these Rules or with any order of the Court 2 may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule 3 or within the inherent power of the Court.” E.D. Cal. Local Rule 110. Local Rule 183(a) provides, 4 in relevant part: 5 6 7 8 9 10 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 [without counsel]. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these Rules. See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that govern other litigants”) (overruled on other grounds). 11 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 12 under Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case 13 or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 14 local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may 15 act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. 16 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (courts may dismiss an action pursuant to 17 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply 18 with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 19 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground for 20 dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal Rule 21 of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any 22 order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 23 1986) (per curiam) (district courts have inherent power to control their dockets and may impose 24 sanctions including dismissal or default). 25 Plaintiff’s failure to respond to the pending motion is in violation of the Local Rules, but 26 the undersigned will not recommend dismissal at this time. Instead, plaintiff is provided an 27 opportunity to respond to the pending motion within 14 days after service of this order. Any 28 further failure to respond will be construed as plaintiff’s non-opposition to the motion which will 2 1 2 constitute grounds for dismissal under Rule 41(b). Local Rule 230(c) states “[n]o party will be entitled to be heard in opposition to a motion 3 at oral arguments if opposition to the motion has not been timely filed by that party....” 4 Accordingly, the hearing set for February 21, 2024, is vacated. After the conclusion of briefing, 5 the motion will be submitted for decision on the record and written briefing pursuant to Local 6 Rule 230(g). If the court subsequently determines that supplemental briefing or oral argument is 7 necessary, the parties will be notified accordingly. 8 For the reasons set forth above, IT IS HEREBY ORDERED as follows: 9 1. The hearing on defendant’s motion to dismiss for lack of subject matter 10 jurisdiction, or, in the alternative, for failure to state a claim, set for February 21, 11 2024, is VACATED. 12 2. Plaintiff shall file a written opposition (or a statement of non-opposition) to the 13 pending motion within 14 days after service of this order. Failure to do so will be 14 deemed a statement of non-opposition and consent to the granting of the motion 15 and may constitute an additional ground for the imposition of appropriate 16 sanctions, including a recommendation that plaintiff’s case be involuntarily 17 dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 18 3. Defendant may file a written reply to any opposition filed by plaintiff within 10 19 days of plaintiff’s filing. The court will take this matter under submission upon 20 conclusion of this briefing schedule. 21 Dated: February 6, 2024 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 22 23 24 25 8 powe24cv0030.nooppo 26 27 28 3

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