Che v. San Jose/Evergreen Community College District Foundation et al

Filing 34

ORDER GRANTING 33 DEFENDANT IMWALLE'S MOTION FOR ADMINISTRATIVE RELIEF; VACATING 32 PRIOR ORDER DATED MAY 10, 2017; AND REINSTATING 22 DEFENDANT IMWALLES MOTION TO DISMISS. Signed by Judge Beth Labson Freeman on 5/26/2017. (blflc1S, COURT STAFF) (Filed on 5/26/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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NGOC LAM CHE,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-00381-BLF

v.
SAN JOSE/EVERGREEN COMMUNITY
COLLEGE DISTRICT FOUNDATION, et
al.,
Defendants.

ORDER GRANTING DEFENDANT
IMWALLE’S MOTION FOR
ADMINISTRATIVE RELIEF;
VACATING PRIOR ORDER DATED
MAY 10, 2017; AND REINSTATING
DEFENDANT IMWALLE’S MOTION
TO DISMISS
[Re: ECF 33]

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Plaintiff Ngoc Lam Che sues the owners and operators of a property located at 4848 San

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Felipe Road, San Jose, California, 95135, for violations of state and federal laws prohibiting

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discrimination on the basis of disability. Compl., ECF 1. Defendant San Jose/Evergreen

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Community College District Foundation filed an answer on March 1, 2017, and Defendant

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Imwalle Properties, Inc. filed a motion to dismiss for lack of subject matter jurisdiction on April

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28, 2017. Answer, ECF 16; Motion, ECF 22. On May 8, 2017, Plaintiff Che filed an application

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to compel Defendant Imwalle’s compliance with General Order 56 and for sanctions against

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Imwalle. Pl.’s Applic., ECF 25. General Order 56 provides for limited discovery and stays “[a]ll

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other discovery and proceedings” pending completion of a joint site inspection and mediation.

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General Order 56. Che asserted that language stay of “[a]ll other discovery and proceedings”

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encompasses motion practice and that Imwalle’s filing of its motion to dismiss therefore violated

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General Order 56. Pl.’s Applic., ECF 25. The Court agreed and struck Imwalle’s motion to

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dismiss, without prejudice, on the basis that it was not permitted under General Order 56. Order

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Striking Motion to Dismiss, ECF 32. The Court denied Che’s request for sanctions. Id.

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On May 19, 2017, Imwalle filed an administrative motion seeking clarification of the
Court’s Order Striking Motion to Dismiss. Def.’s Admin. Motion, ECF 33. Specifically, Imwalle

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requests clarification as to whether General Order 56 stays its obligation to respond to the

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complaint pending completion of the site inspection and mediation required under General Order

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56. Id. Imwalle states that Che has threatened to seek a Clerk’s entry of default if Imwalle does

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not file an answer to the complaint. Id. Imwalle argues that it is entitled to respond to the

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complaint by motion, and that because the Court struck its motion to dismiss as premature, the

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Court should either clarify that Imwalle’s obligation to respond to the complaint is stayed by

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General Order 56 or should enlarge Imwalle’s deadline to respond until such time as the motion

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properly may be filed. Che has not opposed Imwalle’s administrative motion and the time to file

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opposition has elapsed. See Civ. L.R. 7-11 (response to administrative motion due within four

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United States District Court
Northern District of California

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days).
Upon further review of General Order 56, the Court concludes that the language imposing

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a stay on “[a]ll other discovery and proceedings” does not clearly encompass the filing of an

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answer or motion in response to a complaint. At least one court in this district has concluded

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expressly that the language stays only discovery proceedings. See Moralez v. Whole Foods

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Market, 897 F. Supp. 2d 987, 993 n.2 (N.D. Cal. 2012) (holding that the cited language “plainly

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refers to discovery issues, and does not bar a defendant from moving to dismiss on res judicata

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grounds”). Accordingly, the Court VACATES its Order Striking Motion to Dismiss and

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REINSTATES Imwalle’s motion.

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Che’s application to compel Imwalle’s compliance with General Order 56 asserted that

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Che cannot respond to Imwalle’s motion prior to the site inspection. Che’s argument on that point

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is well-taken. Accordingly, the deadline for Che’s opposition to Imwalle’s motion to dismiss is

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extended until fourteen days after completion of the site inspection. Any reply shall be filed

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within seven days after the opposition is filed. The motion to dismiss will be taken under

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submission without oral argument unless the parties are advised otherwise by the Court.

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IT IS SO ORDERED.
Dated: May 26, 2017
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BETH LABSON FREEMAN
United States District Judge
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