Huang v. Bell et al

Filing 74

ORDER DENYING 57 , 70 PLAINTIFF'S MOTION FOR RELIEF FROM ORDER OF DISMISSAL. Signed by Judge Jeremy Fogel on 3/24/2010. (jflc2, COURT STAFF) (Filed on 3/24/2010)

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**E-Filed 3/24/2010**

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

YONG TAN HUANG, Plaintiff, v. TIM BELL, et al., Defendants.

Case Number C 09-5099 JF (PVT) ORDER1 DENYING PLAINTIFF'S MOTION FOR RELIEF FROM ORDER OF DISMISSAL

[re: document nos. 57, 70 ]

On December 7, 2010, this Court issued an order denying Plaintiff's application to proceed in forma pauperis and granting Plaintiff thirty days to pay the filing fee. The order stated that if Plaintiff failed to pay the filing fee within thirty days, the Court would dismiss the action without prejudice. Plaintiff, who is proceeding pro se, failed to pay the filing fee within the time provided. On February 2, 2010, the Court dismissed the action without prejudice for failure to pay the filing fee. The Court also terminated all pending motions, which included a motion to dismiss filed by Defendants on December 7, 2009 and motions for summary judgment filed by Plaintiff on January 22, 2010, January 28, 2010, and February 1, 2010.

This disposition is not designated for publication and may not be cited.

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On February 19, 2010, Plaintiff filed a motion for reconsideration of the dismissal order. On March 23, 2010, Plaintiff filed an amended motion seeking relief from the dismissal order. The Court concludes that these motions are appropriate for disposition without oral argument pursuant to Civil Local Rule 7-1(b). Plaintiff seeks relief under Federal Rule of Civil Procedure 60(b), which provides as follows: On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;

9 10 11 12 (4) the judgment is void; 13 14 15 (6) any other reason that justifies relief. 16 17 18 19 20 21 22 23 24 25 26 27 28 Fed. R. Civ. P. 60(b). It is unclear upon which provisions of the rule Plaintiff relies. He complains that he received the order of dismissal on February 4, 2010, only one day before the scheduled hearing date of February 5, 2010. The Court's dismissal order was entirely independent of the motion to dismiss that had been set for February 5, 2010. The Court dismissed Plaintiff's action not based upon any deficiency in his pleading, but because he did not pay the filing fee within the time provided by the Court. Plaintiff indicates that he attempted to pay the filing fee after dismissal of this action, but he offers no explanation for his failure to pay the filing fee within the thirty-day window granted by the Court. Plaintiff objects to the fact that the Court's dismissal order does not address the merits of Plaintiff's claims. Again, the action was dismissed for failure to pay the filing fee ­ such dismissal does not depend upon or require evaluation of the merits of Plaintiff's claims. Plaintiff contends that the his action was "not dismissible" because it arose under the 2
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(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

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United States Constitution. Plaintiff is mistaken. While the Court certainly has jurisdiction over properly filed actions raising federal constitutional claims, such claims are subject to dismissal when the plaintiff fails to pay the filing fee or otherwise fails to comply with the orders of the court. See Thomas v. Arn, 474 U.S. 140, 147 (1985) ("Had petitioner failed to comply with a scheduling order or pay a filing fee established by a court of appeals, that court could certainly dismiss the appeal."); Link v. Wabash R. Co., 370 U.S. 626 (1962) (recognizing "inherent power" of court to dismiss case for want of prosecution). Plaintiff asserts that the Court acted improperly in failing to calendar his motion for summary judgment for February 5, 2010. Plaintiff filed the subject motion for summary judgment on January 22, 2010 and noticed it for hearing on February 5, 2010. The Court declined to calendar the motion for the noticed hearing date on the ground that the motion was filed less than thirty-five days prior to the hearing date as required by the Court's Civil Local Rules. See Civ. L.R. 7-2(a). Plaintiff cites an outdated version of Federal Rule of Civil Procedure 56 for the proposition that his motion for summary judgment was timely because it was filed at least ten days prior to the hearing. Rule 56 no longer contains the provision relied upon by Plaintiff. Moreover, the rule provides that its timing requirements apply "unless a different time is set by local rule or the court orders otherwise." Fed. R. Civ. P. 56(c). This Court's Civil Local Rules require that a motion be filed at least thirty-five days prior to the hearing date. Moreover, this Court' standing order requires that counsel and parties reserve a hearing date with the Court's administrative law clerk prior to noticing a motion. Plaintiff failed to comply with either requirement. Thus the Court acted well within its authority when it declined to calendar Plaintiff's motion for summary judgment for the date of February 5, 2010. The Court is mindful of Plaintiff's pro se status and might be inclined to grant relief from dismissal if Plaintiff had offered an explanation for his failure to pay the filing fee or had demonstrated any likelihood of stating a cognizable claim against Defendants. As the record stands, the Court declines to grant relief from its order of dismissal. The Court reminds Plaintiff that the dismissal of this action is without prejudice to Plaintiff's filing of a new action against Defendants. If Plaintiff chooses to file a new action, the Court cautions Plaintiff that he must 3
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comply with the current Federal Rules of Civil Procedure, this Court's Civil Local Rules, and this Court's standing orders. ORDER Plaintiff's motion for relief from the order of dismissal is DENIED.

DATED: 3/24/2010 __________________________________ JEREMY FOGEL United States District Judge

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Copies of Order served on:

Yong Tan Huang 345 N. 5th Street San Jose, CA 95112 Hugh Francis Lennon [e-mail], [e-mail]

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