Elliott v. San Francisco Rent Stabilization and Arbitration Board

Filing 40

ORDER: That the hearing set for 02/24/09 at 1:00 PM., is VACATED. Plaintiff has (7) seven-days from the date of this Order to file an Opposition to Motion to Dismiss for Lack of Standing. Defendant shall file any Replies within (10) ten-days from the date of this Order re 26 Motion to Dismiss for Lack of Jurisdiction. Filed by San Francisco Rent Stabilization and Arbitration Board. Signed by Judge ARMSTRONG on 2/17/09. (lrc, COURT STAFF) (Filed on 2/18/2009) Modified on 2/19/2009 (jlm, COURT STAFF). Modified on 2/19/2009 (jlm, COURT STAFF).

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 I. VANCE S. ELLIOTT, Plaintiff, v.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION No. C 08-02352 SBA and Related Cases: No. C 07-04446 SBA No. C 06-04842 SBA ORDER [Docket No. 26]

SAN FRANCISCO RESIDENTIAL RENT STABILIZATION and ARBITRATION BOARD, Defendant.

INTRODUCTION Before the Court is defendant's Renewed Motion to Dismiss for Lack of Standing [Docket No. 26]. For the following reasons, plaintiff Vance S. Elliott has until seven days from the date of the entry of this Order to file an opposition to defendant's Renewed Motion to Dismiss for Lack of Standing [Docket No. 26] or the Court will dismiss this matter with prejudice. BACKGROUND Related Cases 06-04842, 07-04446, and 07-801666 On August 4, 2006, pro se plaintiff Vance E. Elliott filed suit against defendant San Francisco Residential Rent Stabilization and Arbitration Board (the "Board"). See Docket No. 1 in case C 06-04842 SBA ("4842"). He claimed the Board's Uniform Visitor Policy violated the Fourteenth Amendment by circumscribing visitors to single resident only (SRO) residences to between the hours of 9:00 a.m. and 9:00 p.m. Docket No. 6 in 4842 at 2. The Board answered on December 5, 2006. See Docket No. 10 in 4842. Elliott filed three more amended complaints. See Docket entries for 1/17/2007, 1/18/2007, 2/27/2007, all in 4842. On April 4, 2007, the Court ordered the parties to hold a settlement conference between January 9 and 18, 2008. See Docket No. 20 in 4842. On April 6, 2007, the Court referred this matter to Magistrate Judge Brazil for settlement purposes. See Docket entry for 4/6/07 in 4842. On June 26, 2007, Elliott filed another complaint against the Board, in case MC-07-80166

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

("80166"), which was assigned to Judge Vaughn R. Walker. See Docket No. 1 in 80166. Elliott raised the same allegations in this complaint which he had raised in case 4842. See id. On August 28, 2007, case 80166 was redesignated as case C-07-04446 MJJ ("4446") and assigned to Judge Martin J. Jenkins. See Docket No. 1 in 4446, Docket entry for 8/28/2007 in 80166. On October 3, 2007, on the Board's motion [Docket No. 25 in 4842], the Court related case 4842 to case 4446. See Docket No. 28 in 4842, Docket No. 8 in 4446. On November 29, 2007, the Board filed a motion to dismiss for lack of standing, see Docket No. 35 in 4842, and a motion to consolidate, see Docket No. 39 in 4842. On December 5, 2007, the Court set hearings for these motions for February 26, 2008. See Docket No. 41 in 4842. On December 10, 2007, Elliott filed an amended complaint in case 4446. See Docket entry for 12/10/2007 in 4446. On January 18, 2008, Magistrate Judge Brazil set an OSC hearing for February 15, 2008, regarding sanctions for Elliott's failure to appear at a settlement conference. See Docket No. 42 in 4842. Elliott failed to appear at the OSC hearing, and on February 20, 2008, Magistrate Judge Brazil issued a report and recommended the Court dismiss Elliott's cases for failure to prosecute. See Docket No. 46 in 4842. As of February 26, 2008, Elliott had not filed any opposition to the Board's motion to dismiss. See Docket No. 47 in 4842. The Court thus vacated the hearing on the motion, and set an OSC hearing regarding dismissal for failure to prosecute for March 13, 2008. See id. Both parties appeared at the March 13, 2008 hearing. See Docket No. 49 in 4842. The Court consolidated cases 4842 and 4446. See id. Elliott said he failed to appear at his settlement conference because he wanted a jury trial, and believed participating in the former would prevent the latter. See Docket No. 50 in 4842. He also requested a chance to oppose the Board's motion to dismiss. See id. The Court set a briefing schedule, with his opposition due on March 26, 2008. See id. Elliott did not file an opposition, and on April 1, 2008, the Court dismissed case 4842 without prejudice, for failure to prosecute. See id. On June 4, 2008, the Court denied Elliott's motion to reconsider under Federal Rule of Civil Procedure 59. See Docket No. 52 in 4842. II. This Case, 08-02352 SBA On May 7, 2008, Elliott filed a complaint against the Board in this matter, alleging the 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

"Uniform Visitor Policy enforced upon the tenants of so-called SRO hotels in the SOMA and Tenderlion [sic] districts of this City and County of San Francisco is in violation of the 14th Amendment . . . ." Docket No. 1 (Compl.) at 2 ¶ 2. This same day, he also filed an application to proceed in forma pauperis. See Docket No. 2. This matter was assigned to Magistrate Judge Chen, who on June 16, 2008 granted Elliott in forma pauperis status. See Docket No. 5. On June 18, 2008, this Court related this matter to cases 4842 and 4446. See Docket No. 7. On July 30, 2008, Elliott filed a Motion for Summary Judgment, captioned only for case 4446. See Docket No. 25 in 4446. On August 4, 2008, defendant filed a Motion to Dismiss for Lack of Jurisdiction [Docket No. 11]. On August 18, 2006, Elliott filed a Motion to Dismiss with Leave to Amend [Docket No. 15]. Then, on August 22, 2008, he filed an Amendment to Motion to Dismiss with Leave to Amend only in case 4842. See Docket No. 56 in 4842. On September 3, 2009 the Court disposed of these pleadings. The Court denied Elliott's Motion for Summary Judgement, because it consisted of a four-page application to proceed in forma pauperis and seven pages of largely illegible text, and because case 4446 was closed. See Docket No. 17 at 6. The Court granted defendant's Motion to Dismiss for Lack of Jurisdiction, filed on the grounds that Elliott had failed to plead standing to sue. See id. The Court held that Elliott had failed to plead any claim for relief in his complaint, thus failing to meet his burden to demonstrate standing. See id. Nonetheless, because this defect was curable, the Court gave him 20 days leave to amend. See id. at 6-7. The Court then denied as moot Elliott's Motion to Dismiss with Leave to Amend, as it was actually his opposition to defendant's motion. See id. at 7. As for Elliot's Amendment to Motion to Dismiss with Leave to Amend, the Court admonished Elliot not to file pleadings in his closed cases. See id. Finally, Elliott had declined to meet at defendant's counsel's office, stating in a letter that she would use it the way a prostitute allegedly uses her brothel's surroundings to control her customers. See id. The Court ordered Elliott to prosecute his matter with a decorum appropriate for litigation in the federal courts, or risk sanctions or dismissal. See id. at 7-8. On October 28, 2008, Elliott filed a First Amended Complaint. See Docket No. 19. On November 18, 2008, defendant filed the Renewed Motion to Dismiss for Lack of Standing [Docket 3

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

No. 26] before this Court. The motion was set for hearing on February 24, 2009. Under Civil Local Rule 7-3(a), Elliott's opposition, if any was due on February 3, 2009. As of the date of this Order, Elliott has not filed any opposition. The Court's Standing Order for Civil Cases warns that "[t]he failure of the opposing party to file a memorandum of points and authorities in opposition to any motion shall constitute a consent to the granting of the motion." CONCLUSION Accordingly, it is ORDERED that the hearing on defendant's Renewed Motion to Dismiss for Lack of Standing [Docket No. 26], set for February 24, 2009, at 1:00 p.m., in Courtroom 3 of the United States Courthouse, 1301 Clay Street, Oakland, California 94612, is VACATED. Plaintiff Vance S. Elliott has until seven days from the date of the entry of this Order on the docket to file an opposition to defendant's Renewed Motion to Dismiss for Lack of Standing. Defendant shall file any reply within ten days from the date of the entry of this Order on the docket. If Elliott fails to file an opposition as required by this Order, the Court will dismiss this matter with prejudice for failure to prosecute and for failing to oppose defendant's motion. Elliott is warned that if this matter is dismissed with prejudice, he will not be able to file any pleadings related to any allegations giving rise to this matter, neither in this matter nor in any other matter.

IT IS SO ORDERED. February 17, 2009 _________________________________ Saundra Brown Armstrong United States District Judge

4

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 ELLIOTT et al, Plaintiff, v. SAN FRANCISCO RENT STABILIZATION AND ARBITRATION B et al, Defendant. /

Case Number: CV08-02352 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 February 18, 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.

Vance S. Elliott 74 Sixth Street, #226 San Francisco, CA 94103-1608 Dated: February 18, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

5