Sillas v. Whelan et al

Filing 11

ORDER: The (Doc. 7 ) Motion to Dismiss is granted, and Defendants "the United States Attorney Office" and "the San Diego Federal Bureau of Investigation" are dismissed from this action. Defendant Thomas J. Whelan is dismissed wit h prejudice from this action. This action is remanded for lack of subject matter jurisdiction to San Diego County Superior Court, where it was originally filed and assigned case number 37-2009-00091923-CU-CR-CTL. Signed by Judge William Q. Hayes on 4/28/2010. (All non-registered users served via U.S. Mail Service.) (mdc)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MANUEL SILLAS, Plaintiff, vs. THOMAS J. WHELAN (SAN DIEGO FEDERAL JUDGE); THE UNITED STATES ATTORNEY OFFICE; THE SAN DIEGO FEDERAL BUREAU OF INVESTIGATION; S.D.S.U. CAMPUS POLICE; THE SAN DIEGO SHERIFF DEPARTMENT; AND THE SAN DIEGO COUNTY JAIL, Defendants. HAYES, Judge: The matters before the Court are the Motion to Dismiss filed by Defendants "the United States Attorney Office" and "the San Diego Federal Bureau of Investigation" (collectively, "moving Defendants") (Doc. # 7), and the Order to Show Cause issued by this Court on March 9, 2010 (Doc. # 8). I. Background On December 14, 2009, Plaintiff initiated this action by filing a Complaint in San Diego Superior Court, where it was assigned Case Number 37-2009-00091923-CU-CR-CTL. (Doc. # 1, Ex. A). On January 6, 2010, the moving Defendants removed the action to this Court. (Doc. # 1). The moving Defendants alleged that removal was appropriate pursuant to 28 U.S.C. § 1442(a)(1) because the moving Defendants are federal agencies. On March 4, 2010, the moving Defendants filed the pending Motion to Dismiss. (Doc.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
CASE NO. 10cv38-WQH-WVG ORDER

1 # 7). In the Motion to Dismiss, the moving Defendants "move and request the Court to order 2 that they be dismissed from this suit for the following reasons: (1) Plaintiff's failure to satisfy 3 minimum federal pleading requirements, (2) lack of subject matter jurisdiction, due to 4 Plaintiff's failure to follow the mandatory administrative claims procedure of the Federal Tort 5 Claims Act (28 U.S.C. § 2675(a)), and (3) the non-existence of a constitutional tort remedy for 6 Plaintiff against a federal agency (FDIC v. Meyer, 510 U.S. 471 (1994))." (Doc. # 7 at 2). The 7 noticed hearing date of the Motion to Dismiss was April 12, 2010. The Motion to Dismiss 8 contains a Certificate of Service indicating that Plaintiff was served with a copy of the Motion 9 to Dismiss and all attachments. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On March 8, 2010, the Court issued an Order to Show Cause, which stated: IT IS HEREBY ORDERED that Plaintiff is ORDERED TO SHOW CAUSE why Defendant Thomas J. Whelan should not be dismissed from this action due to the doctrine of judicial immunity. See Mireles v. Waco, 502 U.S. 9, 9-10 (1991); Meek v. County of Riverside, 183 F.3d 962, 965-68 (9th Cir. 1999). Defendant Thomas J. Whelan will be dismissed with prejudice from this case unless, within twenty (20) days from the date of this Order, Plaintiff files a written brief or amended pleading indicating why Defendant Thomas J. Whelan should not be dismissed on the grounds of judicial immunity. (Doc. # 8 at 1). On March 16, 2010, the Court issued an Order extending the time for Plaintiff to respond to the Order to Show Cause until April 19, 2010. (Doc. # 9). On April 2, 2010, the moving Defendants filed a "Notice of Non-Receipt of Any Opposition Briefing" related to their pending Motion to Dismiss. (Doc. # 10 at 1). The docket reflects that Plaintiff has not filed a response to the Motion to Dismiss or the Order to Show Cause. II. Discussion A. Motion to Dismiss

A district court may properly grant an unopposed motion to dismiss pursuant to a local rule where the local rule permits, but does not require, the granting of a motion for failure to respond. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). Civil Local Rule 7.1 provides: "If an opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other request for ruling by the court." S.D. Cal. Civ. Local Rule 7.1(f)(3)(a). "Although there is ... a [public] policy
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1 favoring disposition on the merits, it is the responsibility of the moving party to move towards 2 that disposition at a reasonable pace, and to refrain from dilatory and evasive tactics." In re 3 Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994) (affirming grant of motion to dismiss for failure to 4 prosecute); see, e.g., Steel v. City of San Diego, No. 09cv1743, 2009 WL 3715257, at *1 (S.D. 5 Cal., Nov. 5, 2009) (dismissing action pursuant to Local Rule 7.1 for plaintiff's failure to 6 respond to a motion to dismiss). 7 The docket reflects that Plaintiff was served with the Motion to Dismiss. The Motion

8 to Dismiss and the Court's docket reflect that the hearing on the Motion to Dismiss was 9 noticed for April 12, 2010. Civil Local Rule 7.1 provides: "each party opposing a motion ... 10 must file that opposition ... with the clerk ... not later than fourteen (14) calendar days prior to 11 the noticed hearing." S.D. Cal. Civ. Local Rule 7.1(e)(2). As of the date of this Order, 12 Plaintiff has failed to file an opposition. The Court concludes that "the public's interest in 13 expeditious resolution of litigation," "the court's need to manage its docket," and "the risk of 14 prejudice to the defendants" weigh in favor of granting the Motion to Dismiss for failure to file 15 an opposition. Ghazali, 46 F.3d at 53. 16 17 action. 18 19 B. Order to Show Cause The Motion to Dismiss is granted and the moving Defendants are dismissed from this

The docket reflects that Plaintiff was served with the Court's March 8, 2010 Order to

20 Show Cause and the March 16, 2010 Order requiring Plaintiff to respond to the Order to Show 21 Cause by April 19, 2010. As of the date of this Order, Plaintiff has failed to file a response. 22 Defendant Thomas J. Whelan is dismissed from this action with prejudice based upon

23 the doctrine of judicial immunity. See Meek, 183 F.3d at 965-68. 24 25 C. Subject-Matter Jurisdiction

All federal Defendants have been dismissed from this action. No other basis of federal

26 subject-matter jurisdiction has been alleged. Accordingly, this action is remanded to state 27 court for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c). See Bruns v. Nat'l 28 Credit Union Admin., 122 F.3d 1251, 1257-58 (9th Cir. 1997).
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1 III. 2

Conclusion IT IS HEREBY ORDERED that the Motion to Dismiss is GRANTED (Doc. # 7), and

3 Defendants "the United States Attorney Office" and "the San Diego Federal Bureau of 4 Investigation" are DISMISSED from this action. 5 IT IS FURTHER ORDERED that Defendant Thomas J. Whelan is DISMISSED with

6 prejudice from this action. 7 This action is REMANDED for lack of subject matter jurisdiction to San Diego County

8 Superior Court, where it was originally filed and assigned case number 37-2009-000919239 CU-CR-CTL. 10 DATED: April 28, 2010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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WILLIAM Q. HAYES United States District Judge