Mendoza v. Zambrano et al

Filing 46

ORDER DISMISSING CASE. Signed by Magistrate Judge Kandis A. Westmore on 9/14/17. (Attachments: # 1 Certificate/Proof of Service)(sisS, COURT STAFF) (Filed on 9/14/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANTHONY M. MENDOZA, Plaintiff, 8 9 10 United States District Court Northern District of California 11 v. Case No. 4:16-cv-06455-KAW ORDER DISMISSING CASE Re: Dkt. No. 44 AARON ZAMBRANO, et al., Defendants. 12 13 Plaintiff Anthony Mendoza, proceeding pro se, filed this lawsuit alleging wage and hour 14 violations under the Fair Labor Standards Act. On July 12, 2017, Plaintiff filed a second amended 15 complaint, in which he alleges disability discrimination under the Americans with Disabilities Act. 16 (Dkt. No. 36.) On July 26, 2017, Defendants filed a motion to dismiss the second amended 17 complaint. (Dkt. No. 38.) Pursuant to Civil Local Rule 7-3, with an additional three days for 18 mailing, Plaintiff’s opposition was due on August 14, 2017. 19 On August 24, 2016, the Court issued a second order to show case to Plaintiff to explain 20 why his case should not be dismissed for failure to prosecute, and to file an opposition to the 21 motion to dismiss on or before September 5, 2017. Plaintiff was advised that the 22 23 24 25 [f]ailure to timely respond to this order to show cause may result in the dismissal of this action for failure to prosecute. See Judge Westmore’s General Standing Order ¶ 22 (“The failure of the opposing party to file a memorandum of points and authorities in opposition to any motion shall constitute consent to the granting of the motion”). 26 Id. at 1-2. Plaintiff was also again advised that he could obtain assistance at no cost from the 27 Federal Pro Bono Project’s Help Desk. Id. at 1. To date, Plaintiff has not filed a response to the 28 order to show cause; he has not filed an opposition to the pending motion to dismiss; and he has 1 not otherwise communicated with the Court. Federal Rule of Civil Procedure 41(b) permits the involuntary dismissal of an action or 2 3 claim for a plaintiff’s failure to prosecute. See Link v. Wabash R. Co., 370 U.S. 626, 630-31 4 (1962) (“authority of a court to dismiss sua sponte for lack of prosecution has generally been 5 considered an ‘inherent power’”). Unless otherwise stated, a dismissal under Rule 41(b) “operates 6 as an adjudication on the merits.” Fed. R. Civ. P. 41(b). In light the foregoing, the case is dismissed for failure to prosecute. Specifically, the 7 8 dismissal is with prejudice as to the alleged wage and hour violations under the Fair Labor 9 Standards Act, because Plaintiff abandoned those claims when he filed the second amended complaint, and is without prejudice as to the alleged violations of the Americans with Disabilities 11 United States District Court Northern District of California 10 Act. 12 13 IT IS SO ORDERED. Dated: September 14, 2017 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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