Fredeking et al v. Aurora Behavioral Health Center, Inc.

Filing 6

ORDER on Motion to Dismiss [Doc. No. 4 ]. Signed by Judge Cathy Ann Bencivengo on 10/27/2017. (All non-registered users served via U.S. Mail Service)(jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ROBERT FREDEKING and CRYSTAL ARANDA, 15 ORDER ON MOTION TO DISMISS [Doc. No. 4] Plaintiffs, 13 14 Case No.: 3:17-CV-01807-CAB-(KSC) v. AURORA BEHAVIORAL HEALTH CENTER, INC, 16 Defendant. 17 18 On September 20, 2017, Defendant Aurora Behavioral Health Center, Inc. filed a 19 motion to dismiss [Doc. No. 4]. More than a month has passed, and Plaintiffs have not 20 filed an opposition. 21 Civil Local Rule 7.1.e.2 requires a party opposing a motion file an opposition or 22 statement of non-opposition within fourteen calendar days of the noticed hearing. CivLR 23 7.1.e.2. Failure to comply with the local rules setting a deadline to oppose a motion “may 24 constitute a consent to the granting of a motion.” CivLR 7.1.f.3.c. District courts have 25 broad discretion to enact and apply local rules, including dismissal of a case for failure to 26 comply with the local rules. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming 27 grant of an unopposed motion to dismiss under local rule by deeming a pro se litigant’s 28 1 3:17-CV-01807-CAB-(KSC) 1 failure to oppose as consent to granting the motion). That Plaintiffs are proceeding pro se 2 in this action does not excuse their failure to follow the rules of procedure that govern other 3 litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow 4 the same rules of procedure that govern other litigants.”). 5 Here, Defendant filed proof of service of the motion, signaling that Plaintiffs were 6 served at the address provided on the face of the complaint. [Doc. No. 5.] The motion had 7 a noticed hearing date of October 25, 2017. Therefore, Plaintiffs’ opposition to the motion 8 was due on October 11, 2017. As of the date of this order, Plaintiffs have not filed a 9 response. 10 Additionally, the Court has reviewed the complaint and notes that it fails to identify 11 any claims asserted against Defendant and does not set forth any factual allegations. [Doc. 12 No. 1.] See e.g., Bielma v. Bostic, Case No.: 15cv1606-MMA (BLM), 2016 WL 29624, 13 *8 (S.D. Cal. Jan. 4, 2016) (quoting McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996)) 14 (A complaint that lacks “simplicity, conciseness and clarity as to whom plaintiffs are suing 15 for what wrongs, fails to perform the essential elements of a complaint.”). Furthermore, 16 the complaint purports to be a class action and a plaintiff appearing pro se cannot act as 17 counsel for a class. 18 In light of the foregoing, it is hereby ORDERED that Defendant’s motion to dismiss 19 [Doc. No. 4] is GRANTED. It is further ORDERED that the complaint is DISMISSED 20 WITHOUT PREJUDICE. 21 It is SO ORDERED. 22 Dated: October 27, 2017 23 24 25 26 27 28 2 3:17-CV-01807-CAB-(KSC)

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