Marotz v. City and County of San Francisco et al

Filing 34

REFERRAL FOR REASSIGNMENT WITH RECOMMENDATION TO DISMISS CASE. Any party may object to this recommendation under Federal Rule of Civil Procedure 72(b)(2) within fourteen days after being served with a copy. Signed by Judge Nathanael M. Cousins on 1/23/2015. (nclc2, COURT STAFF) (Filed on 1/23/2015)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN FRANCISCO DIVISION 8 9 WILLIAM LEON MAROTZ, 10 11 Plaintiff, v. 12 CITY OF SAN FRANCISCO, SAN Case No. 14-cv-02958 NC REFERRAL FOR REASSIGNMENT WITH RECOMMENDATION TO DISMISS CASE FRANCISCO POLICE DEPARTMENT, 13 POLICE CHIEF GREG SUHR, COMMANDER ROBERT O’SULLIVAN, 14 POLICE OFFICERS (864)(552)(1732)(165) (2323) (1013), TONEY GREETY, PERRY, 15 YAMAMOTO, AND SAN FRANCISCO 16 17 DISTRICT ATTORNEYS OFFICE, Defendants. 18 19 On December 11, 2014, defendants filed a motion to dismiss pro se plaintiff William 20 Marotz’s first amended complaint. Dkt. No. 30. When Marotz failed to respond to 21 defendants’ motion by the December 29, 2014, deadline as required by the local rules, the 22 Court issued an order giving Marotz until January 14, 2015, to file an opposition or a 23 statement of nonopposition, and to show cause why this action should not be dismissed. 24 Dkt. No. 32. The order explained that Marotz’s failure to respond will result in dismissal of 25 this case with prejudice. Id. Marotz has not responded to the motion to dismiss or the 26 Court’s order to show cause. 27 Accordingly, the Court finds that it is appropriate to dismiss this case for failure to 28 follow the local rules, Court orders, and for failure to prosecute. “District courts have Case No. 14-cv-02958 NC REFERRAL AND RECOMMENDATION 1 inherent power to control their dockets and may impose sanctions, including dismissal, in 2 the exercise of that discretion.” Oliva v. Sullivan, 958 F.2d 272, 273 (9th Cir. 1992). The 3 district court’s inherent power includes the power to dismiss a case sua sponte for lack of 4 prosecution. See Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th Cir. 1998); see 5 also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure to follow a district court’s 6 local rules is a proper ground for dismissal.”). In Henderson v. Duncan, 779 F.2d 1421, 7 1423 (9th Cir. 1986), the Ninth Circuit set forth five factors for a district court to consider 8 before resorting to the penalty of dismissal: “(1) the public’s interest in expeditious 9 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 10 the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) 11 the availability of less drastic sanctions.” Furthermore, although the Court construes 12 pleadings liberally in favor of pro se litigants, they are bound by the rules of procedure. 13 Ghazali, 46 F.3d at 54. 14 Here, the public’s interest in expeditious resolution of litigation, the Court’s need to 15 manage its docket, and the risk of prejudice to the defendants all weigh in favor of 16 dismissal. This is the second of three similar lawsuits Marotz has filed against the City and 17 County of San Francisco and its employees. See Dkt. No. 30 at 3; Marotz v. City of San 18 Francisco and others, No. 13-cv-01677 DMR; Marotz v. City and County of San Francisco, 19 and others, No. 14-cv-04494 JCS. The first case was dismissed and the dismissal was 20 affirmed on appeal. No. 13-cv-01677 DMR, Dkt. No. 116. In this case, the Court gave 21 Marotz additional time to file an opposition or a statement of nonopposition to the motion to 22 dismiss and warned him that failure to respond will result in dismissal with prejudice. Dkt. 23 No. 32. The Court’s order was served on Marotz by mail and email. Dkt. No. 32-1. 24 Despite this notice of the potential consequences, Marotz did not respond to the Court’s 25 order. The Court finds that less drastic sanctions are not available and that, despite the 26 public policy favoring disposition of cases on their merits, the balance of the relevant 27 factors weighs in favor of dismissal. 28 Marotz, and defendants the City and County of San Francisco, Chief Greg Suhr and Case No. 14-cv-02958 NC REFERRAL AND RECOMMENDATION 2 Sullivan hav consente to the jur ve ed risdiction of a United S States Magi istrate 1 Captain Robert O’S nder S.C. c). os. 3. r, nt 864, 2 Judge un 28 U.S § 636(c Dkt. No 6, 14, 33 However defendan Officers 8 32, 23, T ety, and moto ot ed. 3 552, 173 165, 232 1013, Toney, Gree Perry, a Yamam have no consente s dismiss the complaint on the basis that 4 Those defendants specially appeared and moved to d rt isdiction ov them as they were i ver improperly served. Dk No. 30. kt. 5 the Cour lacks juri e rties have co onsented, in the abund n dance of cau ution, this m matter will b be 6 Because not all par ned trict J e COMMEND that the District Co DS e ourt 7 reassign to a Dist Court Judge. The Court REC SS EJUDICE. 8 DISMIS this case WITH PRE 9 An party ma object to this recom ny ay o mmendation under Fede Rule of Civil Proc n eral f cedure ) urteen days after being served with a copy. h 10 72(b)(2) within fou 0 11 1 IT IS SO OR T RDERED. 12 2 Date: January 23, 2015 y ____ __________ __________ ____ Nath hanael M. C Cousins Unit States M ted Magistrate J Judge 13 3 14 4 15 5 16 6 17 7 18 8 19 9 20 0 21 1 22 2 23 3 24 4 25 5 26 6 27 7 28 8 Case No. 14-cv-0295 NC 58 REFERR RAL AND RECOM MMENDATION 3

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