Nguyen v. Presley

Filing 24

REPORT AND RECOMMENDATION re 17 MOTION to Dismiss First Amended Complaint without pejudice. Signed by Magistrate Judge Andrew G. Schopler on 7/18/2017.(All non-registered users served via U.S. Mail Service)(jpp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Anthony Nguyen, 12 Case No.: 16-cv-1782-JAH-AGS Plaintiff, 13 v. 14 Audrey Presley, 15 REPORT AND RECOMMENDATION TO DISMISS FIRST AMENDED COMPLAINT WITHOUT PREJUDICE Defendant. 16 17 After being warned his case could be dismissed for failure to prosecute, Anthony 18 Nguyen conceded he was unable to effectively prosecute his case, and requested that the 19 Court, among other possible remedies, “dismiss this case without prejudice[,] allowing 20 Plaintiff to refile when the circumstances permit prosecution.” (ECF No. 23, at 2.) Nguyen 21 can request his case’s dismissal without a court order so long as it is before an answer or a 22 summary judgment motion is filed. Fed. R. Civ. P. 41(a)(1); Concha v. London, 62 F.3d 23 1493, 1506 (9th Cir. 1995) (“Even if the defendant has filed a motion to dismiss, the 24 plaintiff may terminate his action voluntarily by filing a notice of dismissal under Rule 25 41(a)(1).”). As of the date of Nguyen’s request, July 5, 2017, he effectively dismissed his 26 case. 27 Moreover, Nguyen has still not responded to defendant’s motion to dismiss, despite 28 several opportunities. Failing to oppose a motion to dismiss is tantamount to consenting 1 16-cv-1782-JAH-AGS 1 to dismissal. See CivLR 7(f)(3)(c); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) 2 (holding that a district court may grant an unopposed motion to dismiss when a local rule 3 permits). Granting the unopposed motion to dismiss in this instance serves the public’s 4 interest in speedy resolution and the Court’s interest in managing its docket (given the 5 number of opportunities Nguyen was provided to respond), prevents prejudice to defendant 6 by foreclosing this suit until Nguyen is prepared to successfully and efficiently prosecute 7 it, and avoids the more drastic sanction of a dismissal without prejudice. See Ghazali, 46 8 F.3d at 53 (setting out the factors a Court must consider in granting an unopposed motion 9 to dismiss). 10 Thus, the Court recommends that: 11 (1) Defendant’s unopposed motion to dismiss the first amended complaint1 (ECF 12 13 No. 17) be GRANTED, without prejudice; (2) Plaintiff’s request to dismiss the case without prejudice (ECF No. 23) be 14 GRANTED; and 15 (3) The Clerk be directed to close this case. 16 Upon being served with a copy of this report, the parties have 14 days to file any 17 objections. Upon being served with any objections, the party receiving such objections has 18 14 days to file any response. See Fed. R. Civ. P. 72(b)(2). 19 Dated: July 18, 2017 20 21 22 23 24 25 26 27 Nguyen entitled his amended complaint as a “Second Amended Complaint,” although it was his first amendment. (ECF No. 12, at 1.) This Court refers to it here as the “first amended complaint.” 1 28 2 16-cv-1782-JAH-AGS

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