Baker v. City of Marina et al

Filing 31

ORDER DISMISSING CASE WITH PREJUDICE. Signed by Judge Lucy H. Koh on 10/11/2012. (lhklc4, COURT STAFF) (Filed on 10/11/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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KENNETH GEORGE BAKER,

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Plaintiffs,
v.
CITY OF MARINA; CITY OF MARINA
POLICE DEPARTMENT; and DOES 1-10,
inclusive,
Defendants.

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Case No.: 12-CV-02410-LHK
ORDER DISMISSING CASE WITH
PREJUDICE

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Plaintiff Kenneth George Baker (“Plaintiff”) filed his complaint in state court on July 12,
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2011, which Defendants City of Marina and City of Marina Police Department (collectively
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“Defendants”) then removed to federal court on May 11, 2012. See ECF No. 1. On May 18, 2012,
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Defendants filed their consent to proceed before a Magistrate Judge. See ECF No. 6. On the same
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date, May 18, 2012, Defendants filed a motion to dismiss three of Plaintiff’s four claims, pursuant
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to Federal Rule of Civil Procedure 12(b)(6). See ECF No. 7. The motion was noticed for hearing
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before Magistrate Judge Paul S. Grewal on June 26, 2012. See id. Pursuant to Civil Local Rule 724
3(a), Plaintiff’s opposition to the motion to dismiss was due on June 1, 2012. Plaintiff never filed
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an opposition or statement of nonopposition to Defendants’ motion to dismiss. On June 5, 2012,
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Judge Grewal continued the hearing to July 3, 2012. See ECF No. 17.
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Case No.: 12-CV-02410-LHK
ORDER DISMISSING CASE WITH PREJUDICE

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Plaintiff never consented to proceed before a Magistrate Judge. Accordingly, on July 2,

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2012, this action was reassigned to the undersigned judge. See ECF Nos. 22 and 23. On July 10,

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2012, Defendants filed an amended motion to dismiss three of Plaintiff’s four claims pursuant to

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Federal Rule of Civil Procedure 12(b)(6). See ECF No. 24. Pursuant to Civil Local Rule 7-3(a),

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Plaintiffs’ opposition to the amended motion to dismiss was due on July 27, 2012. As of today,

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October 11, 2012, Plaintiff has not filed an opposition or statement of nonopposition to

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Defendants’ motion to dismiss.

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On September 18, 2012, the Court issued an Order to Show Cause (“OSC”) why this case
should not be dismissed with prejudice for failure to prosecute. See ECF No. 29. The OSC

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United States District Court
For the Northern District of California

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ordered Plaintiff to respond to the OSC by October 3, 2012, and to attend an OSC hearing on

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October 11, 2012 at 1:30 p.m. Id. The OSC notified Plaintiff that Plaintiff’s failure to file a

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response by October 3, 2012, and failure to appear at the October 11, 2012 hearing would result in

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dismissal of this action with prejudice for failure to prosecute. Id. Plaintiff failed to respond to the

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OSC and failed to appear at the OSC hearing. Accordingly, this action is DISMISSED with

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prejudice for failure to prosecute. The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: October 11, 2012

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LUCY H. KOH
United States District Judge

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Case No.: 12-CV-02410-LHK
ORDER DISMISSING CASE WITH PREJUDICE