KBR Inc. v. Lampkin

Filing 19

ORDER by Judge Saundra Brown Armstrong GRANTING 4 Motion to Dismiss and REMANDS action to the Superior Court of California, County of Mendocino. All pending matters are TERMINATED. Signed by Judge Saundra Brown Armstrong, on 06/29/11 (lrc, COURT STAFF) (Filed on 6/30/2011) Modified on 7/1/2011 (jlm, COURT STAFF).

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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KBR INC. dba RUSH CURTIS & ASSOC.,
Plaintiff,

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vs.
JAMES LAMPKIN,

Case No: C 11-01514 SBA
ORDER GRANTING CROSSDEFENDANT’S UNOPPOSED
MOTION TO DISMISS AND
REMANDING ACTION
Dkt. 5

Defendant.

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12 JAMES LAMPKIN,

Cross-Complainant,

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vs.

15 VALLEY SKILLED NURSING CENTER,

INC.; THE OPERATING ENGINEERS
PUBLIC AND MISCELLANEOUS
17 EMPLOYEES HEALTH AND WELFARE
FUND,
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Cross-Defendants.

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The parties are presently before the Court on Cross-Defendant Operating Engineers

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Public and Miscellaneous Employees Health and Welfare Fund’s (“Trust Fund”) Motion to

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Dismiss Cross-Complainant James Lampkin’s First Amended Cross-Complaint. Dkt. 5.

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Trust Fund noticed its motion for July 12, 2011. Under the version of Local Rule 7-3 in

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effect at the time the motion was filed, any opposition or statement of non-opposition had

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to be filed by no later than June 21, 2011, which is twenty-one days before the noticed

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hearing date. To date, no opposition has been filed by Cross-Complainant, who is

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represented by counsel. The Court’s Standing Orders explicitly warn that: “The failure of

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the opposing party to timely file a memorandum of points and authorities in opposition to

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any motion or request shall constitute a consent to the granting of the motion.” Dkt. 13 at

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5.

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I.

DISCUSSION

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A.

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“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an

DISMISSAL UNDER FEDERAL RULE OF CIVIL PROCEDURE 41(B)

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action for failure to comply with any order of the court.” Ferdik v. Bonzelet 963 F.2d

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1258, 1260 (9th Cir. 1992). As such, the failure to file an opposition to a motion to dismiss

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in the manner prescribed by the Court’s Local Rules is grounds for dismissal. Ghazali v.

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Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). “In determining whether to dismiss a

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

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

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

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

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

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In the instant case, the Court finds that the above-referenced factors weigh in favor

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of dismissal. With regard to the first factor, “[t]he public’s interest in expeditious

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resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983,

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990 (9th Cir. 1999). This is particularly true in the instant case, where Cross-Complainant

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has impeded the Court’s ability to move this case forward by failing to respond to Trust

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Fund’s motion to dismiss and failing to comply with the requirements of the Court’s

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scheduling orders.

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The second factor also militates in favor of dismissal. See Pagtalunan, 291 F.3d at

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642 (“It is incumbent upon the Court to manage its docket without being subject to routine

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noncompliance of litigants”); Yourish, 191 F.3d 983, 990 (9th Cir. 1999) (recognizing

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court’s need to control its own docket); see also Ferdik, 963 F.2d at 1261 (non-compliance

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with a court’s order diverts “valuable time that [the court] could have devoted to other

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major and serious criminal and civil cases on its docket.”).
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The third factor, the risk of prejudice to the moving party, generally requires that “a

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defendant … establish that plaintiff’s actions impaired defendant’s ability to proceed to trial

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or threatened to interfere with the rightful decision of the case.” Pagtalunan, 291 F.3d at,

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642. At the same time, the Ninth Circuit has “related the risk of prejudice to the plaintiff’s

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reason for defaulting.” Id. Here, Cross-Complainant has offered no explanation for his

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failure to respond nor is any apparent from the record. Indeed, Cross-Complainant has had

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over two months to prepare his opposition. These facts also weigh strongly in favor of

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dismissal. See Yourish, 191 F.3d at 991; Ghazali, 46 F.3d. at 54.

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As to the fourth factor, the Court has already considered less drastic alternatives to

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dismissal. As noted, the Court’s Standing Orders warn that as a consequence of a party’s

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failure to oppose a motion, the Court will construe such inaction as a consent to the

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granting of the unopposed motion. “[A] district court’s warning to a party that failure to

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obey the court’s order will result in dismissal can satisfy the ‘consideration of [less drastic

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sanctions]’ requirement.” Ferdik, 963 F.2d at 1262.

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The final factor, which favors disposition of cases on the merits, by definition,

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weighs against dismissal. Pagtalunan, 291 F.3d at 643 (“Public policy favors disposition of

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cases on the merits. Thus, this factor weighs against dismissal.”).

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In sum, the Court concludes that four of the five relevant factors weigh strongly in

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favor of granting Defendant’s unopposed motion and dismissing the Cross-Complaint as to

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Trust Fund. Id. (affirming dismissal where three factors favored dismissal, while two

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factors weighed against dismissal).

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B.

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When the federal claim that served as the basis for removal is eliminated, either

SUPPLEMENTAL JURISDICTION

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through dismissal by the court or by amendment of the pleadings, federal courts may

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decline to assert supplemental jurisdiction over the remaining state law causes of action and

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exercise its discretion to remand them to state court. See 28 U.S.C. § 1367(c)(3); Acri v.

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Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (court may sua sponte exercise

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discretion and dismiss state law claims under 28 U.S.C. § 1367(c)). Here, Trust Fund
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removed the action on the ground that the claims alleged against it arise under section 502

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of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132. See

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Notice of Removal ¶ 13. Since the Court is dismissing the Cross-Complaint as to Trust

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Fund, there no longer are any claims arising under federal law involved in this action.

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Given the lack of any federal claims, coupled with the stage of the litigation, the Court

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exercises its discretion and remands the action to state court from which it was removed.

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Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351(1988) (“When the single federal-law

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claim in the action was eliminated at an early stage of the litigation, the District Court had a

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powerful reason to choose not to continue to exercise jurisdiction.”); Harrell v. 20th

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Century Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991) (“it is generally preferable for a district

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court to remand remaining pendant claims to state court.”)

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II.

CONCLUSION

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For the reasons set forth above,

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IT IS HEREBY ORDERED THAT

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1.

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Trust Funds’ unopposed motion to dismiss the Cross-Complaint is

GRANTED.
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The Court exercises its discretion under 28 U.S.C. § 1367(c) and REMANDS

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the instant action to the County of Mendocino. The Clerk shall close the file and terminate

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all pending matters and deadlines. The hearing scheduled for July 12, 2011, is VACATED.

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IT IS SO ORDERED.
Dated: June 29, 2011

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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