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