Mohammed et al v. City of Morgan Hill et al

Filing 315

ORDER DENYING 310 MOTION FOR EXTENSION OF TIME; DISMISSING CASE. Since Plaintiffs failed to file an amended pleading within the time provided, this action is DISMISSED pursuant to Federal Rule of Civil Procedure 41(b). The clerk of the court shall close this file upon entry of judgment. Signed by Judge Edward J. Davila on 7/13/2012. (ejdlc1, COURT STAFF) (Filed on 7/13/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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CASE NO. 5:10-cv-05630 EJD

ESTATE OF ABDURAHMAN
MOHAMMED, by and through Its
Successors in Interest CHARLES
WIDEMAN, Executor, HODAN
MOHAMMED, Alternate Executor,
ABDULLAHI MOHAMMED,
SHARMAKE MOHAMMED, and JINOW
GUDAL,

ORDER DENYING PLAINTIFFS’
MOTION FOR EXTENSION OF TIME;
DISMISSING CASE

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[Docket Item No(s). 310]
Plaintiff(s),

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v.
CITY OF MORGAN HILL, et. al.,

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Defendant(s).
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I.

INTRODUCTION

On June 12, 2012, this court granted various dismissal motions filed by Defendants City of

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Morgan Hill and its related entities and individuals, the State of California, the County of Santa

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Clara and its related entities and individuals, and Lucy McAllister (collectively, “Defendants”). See

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Docket Item No. 295. In the ensuing order, the court explained the reasons requiring dismissal of

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the entire Second Amended Complaint (“SAC”), including the fact that named representative

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Plaintiffs Charles Wideman, Hodan Mohammed, Abdullahi Mohammed, Sharmake Mohammed and

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Jinow Gudal (collectively, “Plaintiffs”) failed to establish an ability to represent the Estate of

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Abdurahman Mohammed, and had not obtained counsel to represent the estate consistent with
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CASE NO. 5:10-cv-05630 EJD
ORDER DENYING PLAINTIFFS' MOTION FOR EXTENSION OF TIME; DISMISSING CASE

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California law. See id. The court allowed Plaintiffs the opportunity to file an amended complaint

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no later than July 12, 2012. See id. However, the court specifically advised Plaintiffs that any

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amended pleading should conform to the court’s determinations in the dismissal order, and must

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particularly resolve the issue concerning Plaintiffs’ capacity to sue. See id. Plaintiffs were further

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“advised that failure to file an amended complaint by the deadline imposed, or failure to demonstrate

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capacity to sue in a satisfactory manner by that same deadline, may result in dismissal of this case

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without further notice.” See id.

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Plaintiffs did not file an amended complaint by the deadline ordered by the court. Instead,
on July 11, 2012, Plaintiffs filed a “request for an order extending the time to amend” the complaint.
See Docket Item No. 310. That request is presently before the court. Having carefully considered

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the request and in light of the circumstances within which it is presented, the court finds it

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appropriate to deny the extension. In addition, as Plaintiffs did not comply with the dismissal order

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as directed, the court finds it necessary to dismiss this case.

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II.

DISCUSSION

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A.

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Plaintiffs seek an extension of time under Federal Rule of Civil Procedure 6(b)(1), which

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Request for Extension of Time

provides:
When an act may or must be done within a specified time, the court
may, for good cause, extend the time: (A) with or without motion or
notice if the court acts, or if a request is made, before the original time
or its extension expires; or (B) on motion made after the time has
expired if the party failed to act because of excusable neglect.

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Since Plaintiffs filed their extension request one day for expiration of the deadline, the court

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must examine it within the context of Rule 6(b)(1)(A). “This rule, like all the Federal Rules of Civil

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Procedure, ‘[is] to be liberally construed to effectuate the general purpose of seeing that cases are

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tried on the merits.’” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258-59 (9th Cir. 2010)

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(quoting Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983)). “[R]equests for extensions of time

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made before the applicable deadline has passed should ‘normally . . . be granted in the absence of

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bad faith or prejudice to the adverse party.’” Id. at 1259 (quoting Charles Alan Wright & Arthur R.

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Miller, Federal Practice and Procedure § 1165 (3d ed. 2004)).
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CASE NO. 5:10-cv-05630 EJD
ORDER DENYING PLAINTIFFS' MOTION FOR EXTENSION OF TIME; DISMISSING CASE

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Here, Plaintiffs’ articulation of good cause consists of nearly identical statements in the

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request and accompanying declaration which indicate that, in response to the dismissal order, “the

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estate had to try and raise funds in order to hire an attorney to comply with those orders.” Plaintiffs

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clarify that one of the five named representative plaintiffs is on welfare and that the remaining

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plaintiffs are “unable to raise these funds” within the time period provided. In addition, Plaintiffs

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state that they have “talked to some lawyers to handle the case on their behalf.”

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Although the court recognizes that “‘good cause’ is a non-rigorous standard that has been

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construed broadly across procedural and statutory contexts,” the court cannot accept that Plaintiffs

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have met that burden. Id. at 1259. Indeed, the statements made by Plaintiffs in support of this
request are considerably vague. Although Plaintiffs indicate in general terms that four of them are

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“unable” to assist in securing representation, they did not explain why that is the case or why that

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inability existed for the entire thirty-day amendment period. Moreover, Plaintiffs did not provide

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any information detailing their efforts to secure counsel, either paid or pro bono, other than claiming

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they had “talked” to lawyers.1 While the standard is lenient, Plaintiffs have not established any level

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of diligence in meeting the deadline.

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It is also important to note that Plaintiffs have failed to meet virtually every deadline in this

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case, a pattern the court has described previously. See Docket Item No. 189. The court describes

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the history again, however, as it is equally important to this request. On August 30, 2011, Judge

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Jeremy Fogel ordered Gudal, who at the time was the only plaintiff, to file an amended complaint no

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later than September 30, 2011. See Docket Item No. 163. Gudal did not do so. Instead, Gudal filed

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a motion for clarification on October 17, 2011. See Docket Item Nos. 169, 170. The court denied

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the clarification motion, but extended until November 30, 2011, the deadline for filing an amended

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Notably, the order addressing Defendants’ motions to dismiss is not the first time the issue
of representation was raised by the court. The court previously advised Wideman at a Case
Management Conference (“CMC”) on October 21, 2012, that he could not act as a party to this case
unless actually named as a Plaintiff. The court also advised Gudal at that same conference to seek
legal advice, and reenforced that advisement again in an order denying a motion for clarification.
See Docket Item No. 172 (“As the August 30th order suggests, Mohammed’s death may have a
significant impact on this case in a variety of ways. It is possible that the parties, the causes of
action, or potentially both must be amended in order for this case to proceed further. Gudal may
wish to investigate and seek direction from qualified individuals in that regard.”).
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complaint. See Docket Item No. 172.

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On November 15, 2011, Gudal filed a motion to once again extend the deadline for

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amending the complaint based primarily on the progress of a probate case proceeding in state court

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with regard to Mohammed’s estate. See Docket Item No. 173. The court granted the motion as

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requested and extended the deadline to January 5, 2012, but warned that no further extensions would

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be granted absent extraordinary circumstances. See Docket Item No. 176.

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On December 28, 2011, Gudal filed a second motion to extend the deadline for amending her

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pleadings from January 5th to February 6, 2012, again based on the progress of the probate

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proceedings in state court. See Docket Item Nos. 177, 178. Defendants opposed the motion in a
joint filing. See Docket Item No. 180. The court provided the following explanation in denying the

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extension:

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[Gudal] has already received two extensions of the original deadline
ordered by the court, the first from September 29, 2011, to November
30, 2011, and the second from November 30, 2011, to January 5,
2011. See Docket Item Nos. 172, 176. In receiving the second
extension, [Gudal] was specifically warned that further extensions of
time would not be granted absent the presentation of extraordinary
circumstances. See Docket Item No. 176.
Having reviewed the instant motion and other materials filed in
support thereof, the court finds that [Gudal] has failed to demonstrate
good cause for the relief requested, as has failed to demonstrate the
type of extraordinary circumstances contemplated by the court in its
prior order. Indeed, [Gudal] has now been provided more than 120
days within which to file an amended pleading since the court issued
its original order on August 30, 2011. See Docket Item No. 163.
See Docket Item No. 181.
The court did, however, allow Gudal one final extension of the amendment deadline from

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January 5, 2012, to January 16, 2012. See id. Gudal then appeared at the CMC on January 20,

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2012, but did not file an amended complaint until January 23, 2012. See Docket Item No. 188. The

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court overlooked the untimeliness of that pleading, however, and allowed Plaintiffs to proceed. See

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Docket Item No. 189.

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Plaintiffs’ conduct can no longer be countenanced because it has now become prejudicial to

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Defendants, who are in some ways involuntary participants in this litigation. The reasons for

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prejudice have been identified previously. This action, which has now been pending since
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ORDER DENYING PLAINTIFFS' MOTION FOR EXTENSION OF TIME; DISMISSING CASE

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December, 2010, still has not progressed past the initial pleading stage. It has occupied a spot on

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this court’s docket and calendar in a state of arrested development, requiring Defendants to

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continually expend time and incur fees in responding to Plaintiffs’ countless extension requests and

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related motions, some of which have been filed without regard to their actual merit. See, e.g.,

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Docket Item Nos. 260, 263, 264, 267. Defendants have also been required to attend conferences of

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no benefit to them since the only subject discussed was the expectation that an amended pleading

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would be filed. While the court is mindful, as it has always been, that Plaintiffs are proceeding

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without representation and that certain latitude must be allowed, a pro se plaintiff is nonetheless

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“expected to abide by the rules of the court in which he litigates.” Carter v. Comm’r of Internal
Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986)). Plaintiffs continue to eschew that obligation.

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For these reasons, the court finds that Plaintiffs have not established good cause for another

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extension of time to file an amended complaint. Furthermore, the court finds that allowing for an

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additional extension would be prejudicial to Defendants. Accordingly, Plaintiffs’ request will be

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denied.

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B.

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Having determined that another extension of time will not be allowed, this action is left

Dismissal

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without a viable pleading because Plaintiffs failed to comply with a court order.2 The question of

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dismissal therefore arises.

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

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for failure to comply with a court order. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1991).

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“In determining whether to dismiss a case for failure to comply with a court order the district court

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must weigh five factors including: (1) the public’s interest in expeditious resolution of litigation; (2)

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the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public

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policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives.” Ferdik, 963 F.2d at 1260-61 (citing Thompson v. Hous. Auth. of L.A., 782 F.2d 829,

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On July 12, 2012, Plaintiffs filed what purports to be a Notice of Appearance by an
attorney. See Docket Item No. 314. That document, however, does not comply with the order to
file an amended complaint by that date, which was arguably the most important task to complete.
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ORDER DENYING PLAINTIFFS' MOTION FOR EXTENSION OF TIME; DISMISSING CASE

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831 (9th Cir. 1986); Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).
Much of what has been discussed in the previous section applies with equal force to the

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Ferdik analysis. The stagnancy of this litigation, its effect on the court’s docket, and the prejudice to

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Defendants have each been explained. Also detailed is Plaintiffs repeated failure to comply with

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court orders and meet deadlines. Other than allowing Plaintiffs another opportunity to file an

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amended pleading - an opportunity which will not be provided - the court sees no other less drastic

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options. Although a prior weighing of the Ferdik factors did not lead to dismissal, the circumstances

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have since changed. Those same factors now weigh in favor of dismissal. The court will therefore

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dismiss this case and enter judgment in favor of Defendants.

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III.

ORDER

Based on the foregoing, Plaintiffs’ Motion for Extension of Time (Docket Item No. 310) is
DENIED.
Since Plaintiffs failed to file an amended pleading within the time provided, this action is

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DISMISSED pursuant to Federal Rule of Civil Procedure 41(b). The clerk of the court shall close

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this file upon entry of judgment.

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IT IS SO ORDERED.

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Dated: July 13, 2012
EDWARD J. DAVILA
United States District Judge

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CASE NO. 5:10-cv-05630 EJD
ORDER DENYING PLAINTIFFS' MOTION FOR EXTENSION OF TIME; DISMISSING CASE