Feinberg-Tomahawk v. City and County of San Francisco et al
Filing
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ORDER by Judge James Donato granting 19 Motion to Dismiss (lrcS, COURT STAFF) (Filed on 7/29/2014)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ELISHEVA ANANYAH FEINBERGTOMAHAWK,
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Plaintiff,
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Case No. 14-cv-02275-JD
ORDER GRANTING MOTION TO
DISMISS AND DISMISSING CASE FOR
FAILURE TO PROSECUTE
v.
CITY AND COUNTY OF SAN
FRANCISCO, et al.,
Re: Dkt. No. 19
United States District Court
Northern District of California
Defendants.
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INTRODUCTION
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Defendant City and County of San Francisco (“CCSF”) filed a Motion to Dismiss Plaintiff
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Elishiva Ananyah Feinberg-Tomahawk’s Complaint. See Dkt. No. 19. Ms. Feinberg-Tomahawk,
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who is litigating this action pro se, did not file a response to CCSF’s motion. The Court vacated
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the hearing on this motion and issued an Order to Show Cause why the Motion to Dismiss should
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not be granted. Dkt. Nos. 20, 21. The Order to Show Cause required Ms. Feinberg-Tomahawk to
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respond by July 17, 2014, and stated that her failure to respond could result in this case being
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dismissed for failure to prosecute. Dkt. No. 20. Ms. Feinberg-Tomahawk did not respond to the
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Order to Show Cause. The Court now grants CCSF’s Motion to Dismiss and dismisses this case --
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without prejudice -- for failure to prosecute.
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BACKGROUND
On May 16, 2014, Ms. Feinberg-Tomahawk filed a complaint and an ex parte application
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for a temporary restraining order against Defendants City and County of San Francisco, San
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Francisco Department of Animal Care and Control (“SFDACC”), and two individual employees
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of SFDACC. Dkt. No. 1. The complaint alleges that Defendants violated her First, Fourth, Fifth
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and Fourteenth Amendment rights when they refused to release her dog, NightShade, from the
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custody of SFDACC unless she agreed to allow the dog to be neutered. Id. at 1-2.
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In its Motion to Dismiss, CCSF contends that the complaint should be dismissed for failure
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to state a claim under Federal Rule of Civil Procedure 12(b)(6) and 12(e). CCSF contends that the
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challenged ordinance regulating pit bulls is constitutional, and Ms. Feinberg-Tomahawk failed to
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allege -- with sufficient facts to support her claim -- how the ordinance violates her constitutional
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rights. Dkt. No. 19 at 4. CCSF further asserts that this ordinance has twice survived a challenge
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to its constitutionality. Id. (citing Am. Canine Found. v. Sun, No. C-06-4713 MMC, 2007 WL
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878573 (N.D. Cal. Mar. 21, 2007); Coal. of Human Advocates for K9’s and Owners v. City and
Cnty of San Francisco, No. C-06-1887 MMC, 2007 WL 641197 (N.D. Cal. Feb. 27, 2007)).
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United States District Court
Northern District of California
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Finally, CCSF contends that it rightfully took custody of NightShade, as the dog was wandering at
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large when it was taken into custody. Id. at 5.
Ms. Feinberg-Tomahawk did not file an opposition to CCSF’s Motion to Dismiss within
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the required time as provided by Civil Local Rule 7-3. Under Rule 7-3, any opposition or
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statement of non-opposition must be filed by no later than 21 days before the noticed hearing date.
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In light of Ms. Feinberg-Tomahawk’s pro se status, the Court did not immediately dismiss the
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complaint but instead issued an Order to Show Cause directing Ms. Feinberg-Tomahawk to
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explain why CCSF’s motion should not be granted, and warned her that failure to respond could
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result in dismissal. Dkt. No. 20. Ms. Feinberg-Tomahawk did not respond to the Order to Show
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Cause.
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DISCUSSION
Federal Rule of Civil Procedure 41(b) provides the Court with authority to dismiss a case
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for failure to comply with any of its orders. Fed. R. Civ. P. 41(b); see Ferdik v. Bonzelet, 963 F.2d
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1258, 1260 (9th Cir. 1992). A party’s failure to file an opposition to a motion to dismiss in
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accordance with the Civil Local Rules, alone, is grounds for dismissal. See Espinosa v.
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Washington Mut. Bank, No. C 10-04464 SBA, 2011 WL 334209, at *1 (N.D. Cal. Jan. 31, 2011)
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(dismissing case for failing to oppose motions to dismiss and failing to comply with the court’s
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scheduling orders) (citing Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming district
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court’s dismissal for failure to respond to motion to dismiss)). “In determining whether to dismiss
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a claim for failure to prosecute or failure to comply with a court order, the Court must weigh the
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following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s
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need to manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the
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availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on
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their merits.” Id. (citing Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)).
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These factors weigh in favor of dismissal. Ms. Feinberg-Tomahawk did not respond to
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CCSF’s motion in compliance with the Local Rules and then failed to respond to the Court’s
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Order to Show Cause. With respect to the first factor, “[t]he public’s interest in expeditious
resolution of litigation always favors dismissal.” Id. (citing Yourish v. Cal. Amplifier, 191 F.3d
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United States District Court
Northern District of California
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983, 990 (9th Cir. 1999)). For the second factor, the Court must be able to manage its docket
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“without being subject to routine noncompliance of litigants.” Pagtalunan, 291 F.3d at 642; see
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also Ferdik, 963 F.2d at 1261 (discussing that non-compliance with a court’s order diverts
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“valuable time that [the court] could have devoted to other major and serious criminal and civil
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cases on its docket.”). For the third factor, due to Ms. Feinberg-Tomahawk’s failure to respond to
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either the Motion to Dismiss or this Court’s Order to Show Cause, she has offered no explanation
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for her failure. This weighs strongly in favor of dismissal. See Espinosa, 2011 WL 334209, at *2.
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With respect to the fourth factor, the Court already issued an Order to Show Cause, which
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provided Ms. Feinberg-Tomahawk with additional notice of the pending motion to dismiss, as
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well as additional time to respond to the merits of that motion. See Dkt. No. 20. The Court’s
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issuance of the Order to Show Cause satisfies the consideration of less drastic sanctions
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requirement. See Ferdik, 963 F.2d at 1262. Although the fifth factor -- the public policy favoring
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disposition of cases on their merits -- might weigh against dismissal on its own, the cumulative
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weight of the other factors overrides it. See Pagtalunan, 291 F.3d at 643 (finding district court did
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not abuse its discretion in dismissing case where three of the five factors weighed in favor of
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dismissal).
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CONCLUSION
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Because the relevant factors weigh in favor of granting the unopposed motion to dismiss,
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the Court grants that motion and dismisses this case in its entirety. This dismissal, however, is
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without prejudice.1 Ms. Feinberg-Tomahawk may file an Amended Complaint that addresses the
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issues raised in CCSF’s Motion to Dismiss within the next 21 days. Ms. Feinberg-Tomahawk’s
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failure to file an Amended Complaint within that time period will lead to dismissal of this case
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with prejudice for failure to prosecute.
Ms. Feinberg-Tomahawk should be aware that there is free legal assistance available to
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litigants without lawyers in federal court. Assistance at the Legal Help Center is available to
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anyone who is representing him- or herself in a civil lawsuit in the San Francisco or Oakland
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United States District Court
Northern District of California
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divisions of the United States District Court for the Northern District of California. The Legal
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Help Center is located in the federal courthouse in San Francisco: 450 Golden Gate Avenue, 15th
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Floor, Room 2796. Assistance is provided by appointment only, and appointments are held in
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person at the Legal Help Center. A litigant may schedule an appointment by signing up in the
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appointment book located on the table outside the door of the Center or by calling the Legal Help
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Center appointment line at 415-782-8982. Ms. Feinberg-Tomahawk is encouraged to seek
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assistance from the Legal Help Center in amending the complaint.
IT IS SO ORDERED.
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Dated: July 28, 2014
______________________________________
JAMES DONATO
United States District Judge
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Dismissal with prejudice of a complaint under Rule 41(b) is a “harsh penalty that should be
imposed only in extreme circumstances.” Ferdik, 963 F.2d at 1260.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ELISHEVA ANANYAH FEINBERGTOMAHAWK,
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Plaintiff,
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Case No. 14-cv-02275-JD
CERTIFICATE OF SERVICE
v.
CITY AND COUNTY OF SAN
FRANCISCO, et al.,
United States District Court
Northern District of California
Defendants.
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on 7/29/2014, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.
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Elisheva Ananyah Feinberg-Tomahawk
492 15th Avenue
San Francisco, CA 94118
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Dated: 7/29/2014
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Richard W. Wieking
Clerk, United States District Court
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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO
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