Mendoza v. Zambrano et al
Filing
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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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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ANTHONY M. MENDOZA,
Plaintiff,
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United States District Court
Northern District of California
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v.
Case No. 4:16-cv-06455-KAW
ORDER DISMISSING CASE
Re: Dkt. No. 44
AARON ZAMBRANO, et al.,
Defendants.
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Plaintiff Anthony Mendoza, proceeding pro se, filed this lawsuit alleging wage and hour
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violations under the Fair Labor Standards Act. On July 12, 2017, Plaintiff filed a second amended
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complaint, in which he alleges disability discrimination under the Americans with Disabilities Act.
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(Dkt. No. 36.) On July 26, 2017, Defendants filed a motion to dismiss the second amended
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complaint. (Dkt. No. 38.) Pursuant to Civil Local Rule 7-3, with an additional three days for
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mailing, Plaintiff’s opposition was due on August 14, 2017.
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On August 24, 2016, the Court issued a second order to show case to Plaintiff to explain
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why his case should not be dismissed for failure to prosecute, and to file an opposition to the
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motion to dismiss on or before September 5, 2017. Plaintiff was advised that the
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[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”).
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Id. at 1-2. Plaintiff was also again advised that he could obtain assistance at no cost from the
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Federal Pro Bono Project’s Help Desk. Id. at 1. To date, Plaintiff has not filed a response to the
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order to show cause; he has not filed an opposition to the pending motion to dismiss; and he has
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not otherwise communicated with the Court.
Federal Rule of Civil Procedure 41(b) permits the involuntary dismissal of an action or
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claim for a plaintiff’s failure to prosecute. See Link v. Wabash R. Co., 370 U.S. 626, 630-31
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(1962) (“authority of a court to dismiss sua sponte for lack of prosecution has generally been
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considered an ‘inherent power’”). Unless otherwise stated, a dismissal under Rule 41(b) “operates
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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
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dismissal is with prejudice as to the alleged wage and hour violations under the Fair Labor
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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
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United States District Court
Northern District of California
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Act.
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IT IS SO ORDERED.
Dated: September 14, 2017
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge
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