Blow v. County of San Diego et al

Filing 28

ORDER Granting 25 Motion to Dismiss for Failure to State a Claim. It is ordered that the Court dismisses without prejudice plaintiff's First Amended Complaint (ECF No. 24). Plaintiff shall file an amended complaint, if any, on or before fourteen (14) days of the date on which this Order is electronically docketed. Failure to file an amended complaint by this date may result in this case being dismissed with prejudice. Signed by Judge Janis L. Sammartino on 7/6/2017. (All non-registered users served via U.S. Mail Service)(dxj)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSHUA ALAN BLOW, Case No.: 17-CV-157 JLS (JLB) Plaintiff, 12 13 14 ORDER GRANTING MOTION TO DISMISS v. COUNTY OF SAN DIEGO, et al., 15 (ECF No. 25) Defendants. 16 17 18 Presently before the Court is Defendant County of San Diego’s Motion to Dismiss 19 First Amended Complaint (ECF No. 25). The Court vacated the hearing on the motion and 20 took it under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). 21 (ECF No. 27.) Plaintiff Joshua Alan Blow, proceeding pro se, never filed an opposition to 22 Defendant’s Motion to Dismiss. 23 Civil Local Rule 7.1(e)(2) states that “each party opposing a motion . . . must file 24 that opposition . . . with the clerk and serve the movant or the movant’s attorney not later 25 than fourteen (14) calendar days prior to the noticed hearing.” (Emphasis in original.) As 26 a corollary, Civil Local Rule 7.1(f)(3)(c), entitled “Waiver,” states that “[i]f an opposing 27 party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure 28 may constitute a consent to the granting of a motion . . . .” Further, case law establishes 1 17-CV-157 JLS (JLB) 1 that “[b]efore dismissing the action, the district court is required to weigh several factors: 2 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 3 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 4 disposition of cases of their merits; and (5) the availability of less drastic sanctions.” 5 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (internal quotation marks omitted). 6 Plaintiff did not file any opposition to Defendant’s motion to dismiss despite having 7 an opportunity to do so. Indeed, Defendant’s motion contains a proof of service indicating 8 that Plaintiff was served with its motion. (See, e.g., ECF No. 25-2 (proof of service).) In 9 addition, the Motion to Dismiss reflects that the hearing on the motion was noticed for May 10 18, 2017 at 1:30 p.m. (ECF No. 25.) And there is no other indication that Plaintiff was 11 otherwise unable to respond. The Court concludes that “the public’s interest in expeditious 12 resolution of litigation,” “the court’s need to manage its docket,” and the “risk of prejudice 13 to the defendant” weigh in favor of granting the Motion to Dismiss on the grounds that 14 Plaintiff has failed to file any opposition. Ghazali, 46 F.3d at 53. Accordingly, given 15 Plaintiff’s failure to file an opposition in compliance with the local rules, the Court 16 GRANTS Defendant’s Motion to Dismiss (ECF No. 25). See, e.g., id. (“Failure to follow 17 a district court’s local rules is a proper ground for dismissal.”); id. at 54 (“Although we 18 construe pleadings liberally in their favor, pro se litigants are bound by the rules of 19 procedure.”); Salarda v. Aegis Wholesale Corp., No. 12CV0700-WQH-BGS, 2012 WL 20 3986441, at *1 (S.D. Cal. Sept. 11, 2012) (concluding same based on similar situation). 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 2 17-CV-157 JLS (JLB) 1 CONCLUSION 2 For the reasons stated above, the Court GRANTS Defendant’s Motion to Dismiss 3 (ECF No. 25). Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s 4 First Amended Complaint (ECF No. 24). Plaintiff SHALL FILE an amended complaint, 5 if any, on or before fourteen (14) days of the date on which this Order is electronically 6 docketed. Failure to file an amended complaint by this date may result in this case being 7 dismissed with prejudice.1 8 9 IT IS SO ORDERED. Dated: July 6, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 In addition, the Court notes that a future failure to oppose a motion to dismiss may result in a dismissal of the complaint with prejudice. 3 17-CV-157 JLS (JLB)

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