Evans v. Sandplay Therapists of America

Filing 38

ORDER by Judge ARMSTRONG granting 27 Motion to Dismiss (lrc, COURT STAFF) (Filed on 10/20/2008)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JANE R. EVANS, Plaintiff, v. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION No. C 08-01066 SBA ORDER [Docket No. 27] SANDPLAY THERAPISTS OF AMERICA, Defendant. Before the Court is defendant's Motion to Dismiss or, Alternatively, for Summary Judgment (the "Motion") [Docket No. 27]. For the following reasons, the Court GRANTS the Motion as unopposed. On February 22, 2008, plaintiff Jane R. Evans filed in propria persona and in forma pauperis, a 150-page complaint which is not a model of clarity. See Docket No. 1. The first page of the Complaint is from a Northern District of California form Employment Discrimination Complaint, which indicates Evans is proceeding under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. See Docket No. 1 at 1. Nonetheless, a review of the Complaint's first eight pages shows allegations of discriminatory, retaliatory, and harassing conduct on the basis of Evan's ethnicity, national origin, and/or perceived mental or emotional condition, by what could be agents of her employer, a fee-based educational institution she attended, or her therapist. See Docket No. 1 at 1-8. Defendant's Motion is predicated on two grounds: that it never employed Evans, and that it lacks sufficient employees to qualify as an "employer" as defined in Title VII. See Docket No. 23 at 2:19-24. Neither of these allegations can be verified on the face of Evans' Complaint. The Motion was set for a hearing on September 9, 2008. See Docket No. 23. Per Local Civil Rule 7-3, Evans' opposition was due on or before August 19, 2008. By September 5, 2008, Evans had not responded to the Motion. Because plaintiff was proceeding without the benefit of counsel, and because the Court had questions regarding the Motion, the Court vacated the hearing on it, and set an OSC hearing regarding dismissal, for 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 October 16, 2008. See Docket No. 34. The Court ordered Evans to (1) file a statement ten days or more prior to the hearing, as to why the Court should not dismiss this matter for her failure to prosecute it, id. 2, and (2) to appear at the hearing, id. 1. Evans was warned that her failure to perform either action would subject her to dismissal. Id. 3. Evans neither filed her statement nor appeared at her hearing. Accordingly, the Court GRANTS the motion as unopposed, and DISMISSES the Complaint without prejudice for Evans' failure to prosecute it. All matters calendared in this action are VACATED. The Clerk shall CLOSE the file and terminate any pending matters. IT IS SO ORDERED. October 17, 2008 _________________________________ Saundra Brown Armstrong United States District Judge 2 1 2 3 4 5 6 7 8 9 10 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 EVANS et al, Plaintiff, v. SANDPLAY THERAPISTS OF AMERICA et al, Defendant. / Case Number: CV08-01066 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 October 20, 2008, 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. Jane Rocio Evans PO Box 424886 San Francisco, CA 94142 Dated: October 20, 2008 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk 3

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