Feinberg-Tomahawk v. City and County of San Francisco et al

Filing 22

ORDER by Judge James Donato granting 19 Motion to Dismiss (lrcS, COURT STAFF) (Filed on 7/29/2014)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

ELISHEVA ANANYAH FEINBERGTOMAHAWK,

8

Plaintiff,

9
10
11

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.
12
13

INTRODUCTION

14

Defendant City and County of San Francisco (“CCSF”) filed a Motion to Dismiss Plaintiff

15

Elishiva Ananyah Feinberg-Tomahawk’s Complaint. See Dkt. No. 19. Ms. Feinberg-Tomahawk,

16

who is litigating this action pro se, did not file a response to CCSF’s motion. The Court vacated

17

the hearing on this motion and issued an Order to Show Cause why the Motion to Dismiss should

18

not be granted. Dkt. Nos. 20, 21. The Order to Show Cause required Ms. Feinberg-Tomahawk to

19

respond by July 17, 2014, and stated that her failure to respond could result in this case being

20

dismissed for failure to prosecute. Dkt. No. 20. Ms. Feinberg-Tomahawk did not respond to the

21

Order to Show Cause. The Court now grants CCSF’s Motion to Dismiss and dismisses this case --

22

without prejudice -- for failure to prosecute.

23
24

BACKGROUND
On May 16, 2014, Ms. Feinberg-Tomahawk filed a complaint and an ex parte application

25

for a temporary restraining order against Defendants City and County of San Francisco, San

26

Francisco Department of Animal Care and Control (“SFDACC”), and two individual employees

27

of SFDACC. Dkt. No. 1. The complaint alleges that Defendants violated her First, Fourth, Fifth

28

1

and Fourteenth Amendment rights when they refused to release her dog, NightShade, from the

2

custody of SFDACC unless she agreed to allow the dog to be neutered. Id. at 1-2.

3

In its Motion to Dismiss, CCSF contends that the complaint should be dismissed for failure

4

to state a claim under Federal Rule of Civil Procedure 12(b)(6) and 12(e). CCSF contends that the

5

challenged ordinance regulating pit bulls is constitutional, and Ms. Feinberg-Tomahawk failed to

6

allege -- with sufficient facts to support her claim -- how the ordinance violates her constitutional

7

rights. Dkt. No. 19 at 4. CCSF further asserts that this ordinance has twice survived a challenge

8

to its constitutionality. Id. (citing Am. Canine Found. v. Sun, No. C-06-4713 MMC, 2007 WL

9

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)).

11
United States District Court
Northern District of California

10

Finally, CCSF contends that it rightfully took custody of NightShade, as the dog was wandering at

12

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

13
14

the required time as provided by Civil Local Rule 7-3. Under Rule 7-3, any opposition or

15

statement of non-opposition must be filed by no later than 21 days before the noticed hearing date.

16

In light of Ms. Feinberg-Tomahawk’s pro se status, the Court did not immediately dismiss the

17

complaint but instead issued an Order to Show Cause directing Ms. Feinberg-Tomahawk to

18

explain why CCSF’s motion should not be granted, and warned her that failure to respond could

19

result in dismissal. Dkt. No. 20. Ms. Feinberg-Tomahawk did not respond to the Order to Show

20

Cause.

21
22

DISCUSSION
Federal Rule of Civil Procedure 41(b) provides the Court with authority to dismiss a case

23

for failure to comply with any of its orders. Fed. R. Civ. P. 41(b); see Ferdik v. Bonzelet, 963 F.2d

24

1258, 1260 (9th Cir. 1992). A party’s failure to file an opposition to a motion to dismiss in

25

accordance with the Civil Local Rules, alone, is grounds for dismissal. See Espinosa v.

26

Washington Mut. Bank, No. C 10-04464 SBA, 2011 WL 334209, at *1 (N.D. Cal. Jan. 31, 2011)

27

(dismissing case for failing to oppose motions to dismiss and failing to comply with the court’s

28

scheduling orders) (citing Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming district
2

1

court’s dismissal for failure to respond to motion to dismiss)). “In determining whether to dismiss

2

a claim for failure to prosecute or failure to comply with a court order, the Court must weigh the

3

following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s

4

need to manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the

5

availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on

6

their merits.” Id. (citing Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)).

7

These factors weigh in favor of dismissal. Ms. Feinberg-Tomahawk did not respond to

8

CCSF’s motion in compliance with the Local Rules and then failed to respond to the Court’s

9

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

11
United States District Court
Northern District of California

10

983, 990 (9th Cir. 1999)). For the second factor, the Court must be able to manage its docket

12

“without being subject to routine noncompliance of litigants.” Pagtalunan, 291 F.3d at 642; see

13

also Ferdik, 963 F.2d at 1261 (discussing that non-compliance with a court’s order diverts

14

“valuable time that [the court] could have devoted to other major and serious criminal and civil

15

cases on its docket.”). For the third factor, due to Ms. Feinberg-Tomahawk’s failure to respond to

16

either the Motion to Dismiss or this Court’s Order to Show Cause, she has offered no explanation

17

for her failure. This weighs strongly in favor of dismissal. See Espinosa, 2011 WL 334209, at *2.

18

With respect to the fourth factor, the Court already issued an Order to Show Cause, which

19

provided Ms. Feinberg-Tomahawk with additional notice of the pending motion to dismiss, as

20

well as additional time to respond to the merits of that motion. See Dkt. No. 20. The Court’s

21

issuance of the Order to Show Cause satisfies the consideration of less drastic sanctions

22

requirement. See Ferdik, 963 F.2d at 1262. Although the fifth factor -- the public policy favoring

23

disposition of cases on their merits -- might weigh against dismissal on its own, the cumulative

24

weight of the other factors overrides it. See Pagtalunan, 291 F.3d at 643 (finding district court did

25

not abuse its discretion in dismissing case where three of the five factors weighed in favor of

26

dismissal).

27
28
3

CONCLUSION

1

Because the relevant factors weigh in favor of granting the unopposed motion to dismiss,

2
3

the Court grants that motion and dismisses this case in its entirety. This dismissal, however, is

4

without prejudice.1 Ms. Feinberg-Tomahawk may file an Amended Complaint that addresses the

5

issues raised in CCSF’s Motion to Dismiss within the next 21 days. Ms. Feinberg-Tomahawk’s

6

failure to file an Amended Complaint within that time period will lead to dismissal of this case

7

with prejudice for failure to prosecute.
Ms. Feinberg-Tomahawk should be aware that there is free legal assistance available to

8

litigants without lawyers in federal court. Assistance at the Legal Help Center is available to

10

anyone who is representing him- or herself in a civil lawsuit in the San Francisco or Oakland

11
United States District Court
Northern District of California

9

divisions of the United States District Court for the Northern District of California. The Legal

12

Help Center is located in the federal courthouse in San Francisco: 450 Golden Gate Avenue, 15th

13

Floor, Room 2796. Assistance is provided by appointment only, and appointments are held in

14

person at the Legal Help Center. A litigant may schedule an appointment by signing up in the

15

appointment book located on the table outside the door of the Center or by calling the Legal Help

16

Center appointment line at 415-782-8982. Ms. Feinberg-Tomahawk is encouraged to seek

17

assistance from the Legal Help Center in amending the complaint.
IT IS SO ORDERED.

18
19

Dated: July 28, 2014
______________________________________
JAMES DONATO
United States District Judge

20
21
22
23
24
25
26
27
1

28

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.
4

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

ELISHEVA ANANYAH FEINBERGTOMAHAWK,

8

Plaintiff,

9
10
11

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.
12
13
14
15
16

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.

17
18

Elisheva Ananyah Feinberg-Tomahawk
492 15th Avenue
San Francisco, CA 94118

19
20
21

Dated: 7/29/2014

22
23

Richard W. Wieking
Clerk, United States District Court

24
25
26
27

By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

28
5