Kinstley et al v. City and County of San Francisco et al

Filing 86

ORDER by Judge Saundra Brown Armstrong, GRANTING IN PART AND DENYING IN PART 77 Motion to Dismiss for Lack of Prosecution. The hearing on the motion set for 01/30/09 at 1:00 PM, is VACATED (lrc, COURT STAFF) (Filed on 1/23/2009) Modified on 1/26/2009 (jlm, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MARIA LEE KINSTLEY and KENNETH R. KINSTLEY, Plaintiffs, v. CITY & COUNTY OF SAN FRANCISCO, DIANNE KENNEY, CITY OF PLEASANT HILL et al., Defendants. /

Case No. 07-02323 SBA ORDER [Docket No. 77]

Before the Court is the Motion to Dismiss All Claims with Prejudice, filed by Defendants City and County of San Francisco and Dianne Kenney ("San Francisco Defendants"). [Docket No. 77]. In addition to a dismissal of all of Maria Kinstley's and Kenneth Kinstley's claims against them with prejudice, the San Francisco Defendants further request the Court dismiss them from this case with prejudice. The motion is unopposed. For the reasons discussed herein, the Court GRANTS the motion, in part, and DENIES WITHOUT PREJUDICE, in part. On March 6, 2008, the San Francisco Defendants "moved for dismissal with prejudice of (1) all state law claims and (2) all of plaintiffs' Fourth Amendment claims (with the exception of plaintiff Maria Lee Kinstley's excessive force claim), any Monell claim, and plaintiffs' "Civil Rights Act 440" claim in plaintiffs' Amended Complaint in this action pursuant to Federal Rule of Civil Procedure 12(b)(6)." [Docket No. 35]. The Court granted the motion, which was unopposed, and dismissed the claims without prejudice. [Docket No. 45]. The motion, and order granting the motion, clearly exclude a Fourth Amendment claim for excessive force by Maria Kinstley. This claim remains. As to the claims that were dismissed without prejudice ­ all state law claims, plaintiffs' Fourth Amendment claims (with the exception of plaintiff Maria Lee Kinstley's excessive force claim), any Monell claim, and plaintiffs' "Civil Rights Act 440" claim ­ the Court now GRANTS the

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

motion to dismiss with prejudice. Pursuant to Federal Rule of Civil Procedure 41(b), if the plaintiff fails to prosecute or to comply with the rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule -- except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 -- operates as an adjudication on the merits. Plaintiffs have not petitioned the Court to reinstate the dismissed claims or responded to the pending Motion to Dismiss. Their inaction is a failure to prosecute the claims, and thus it is proper for the Court to dismiss the claims with prejudice. The motion to dismiss Maria Kinstley's excessive force claim, however, is DENIED WITHOUT PREJUDICE to filing a properly supported motion addressing the claim. The hearing on the motion, scheduled for January 30, 2009, at 1:00 p.m., is VACATED.

IT IS SO ORDERED.

Dated: 1/22/09

SAUNDRA BROWN ARMSTRONG United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA KINSTLEY ET AL et al, Plaintiff, v. CITY & COUNTY OF SAN FRANCISCO ET AL et al, Defendant. /

Case Number: CV07-02323 SBA CERTIFICATE OF SERVICE

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 January 23, 2009, 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.

Maria Lee Kinstley P.O. Box 126 Walnut Creek, CA 94597 Dated: January 23, 2009

Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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