Sikking et al v. Griswold et al

Filing 20

ORDER (1) Granting Defendant's Unopposed 13 Motion to Dismiss; and (2) Denying 2 Plaintiff's Motion for a Preliminary Injunction. A case cannot move forward toward resolution on the merits when the plaintiffs fail to defend their compla int against a Rule 12 motion. Accordingly, the Court grants Defendant's unopposed motion to dismiss, and dismisses Plaintiffs' claims as to Defendant Richardson Griswold without prejudice. The Clerk of Court is instructed to terminate this action as to Defendant Richardson Griswold. Because Plaintiffs' motion for injunctive relief seeks only to stop the receiver from selling the property, the Court also denies Plaintiffs' motion for an injunction. Signed by Judge Michael M. Anello on 7/24/2018. (All non-registered users served via U.S. Mail Service)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JEFF SIKKING; and BARBARA
SIKKING,

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ORDER: (1) GRANTING
DEFENDANT’S UNOPPOSED
MOTION TO DISMISS; AND (2)
DENYING PLAINTIFF’S MOTION
FOR A PRELIMINARY
INJUNCTION

Plaintiffs,

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Case No.: 18cv634-MMA (JMA)

v.
RICHARDSON GRISWOLD; SAN
DIEGO CITY ATTORNEY'S; and
CODE ENFORCEMENT,
Defendants.

[Doc. Nos. 2, 13]

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Plaintiffs Jeff and Barbara Sikking filed this action against Defendants Richardson

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Griswold and the San Diego City Attorney’s & Code seeking an injunction “halt[ing the

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Receiver from] any sale of [Plaintiffs’] property [located at 4814 Auburn Dr., San Diego,

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CA].” See Doc. No. 1 at 7. Plaintiffs also filed a motion for an injunction seeking the

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same relief. See Doc. No. 2. On May 14, 2018, Defendant Richardson Griswold, the

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court appointed Receiver, filed a motion to dismiss Plaintiffs’ Complaint pursuant to

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Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that he is immune

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from this lawsuit, the court should abstain under the Younger doctrine, the Court lacks

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subject matter jurisdiction, and because Defendant was sued in his individual capacity

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and not as a receiver. Doc. No. 13. The Court set the motion for hearing on June 18,
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18cv634-MMA (JMA)

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2018, meaning that Plaintiffs were required to file a response in opposition on or before

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June 4, 2018. See Civ. L.R. 7.1.e.2 (stating that “each party opposing a motion . . . must

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file that opposition or statement of non-opposition . . . not later than fourteen (14)

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calendar days prior to the noticed hearing”). Plaintiffs did not file an opposition brief or

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a statement of non-opposition in response to Defendant’s motion to dismiss. See Docket.

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On June 11, 2018, the Court took Defendant Griswold’s motion to dismiss under

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submission. Doc. No. 15. In response, Plaintiffs filed a motion, which the Court

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construed as a motion for an extension of time to file a response in opposition to

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Defendant’s motion to dismiss. Doc. No. 17. Accordingly, the Court ordered Plaintiffs

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to file a response in opposition to Defendant Griswold’s motion to dismiss on or before

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July 9, 2018. Doc. No. 18. The Court specifically warned Plaintiffs that “[p]ro se status

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does not excuse a litigant from full participation in litigation. Like all litigants, pro se

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litigants are bound by and expected to comply with the local rules of this District and the

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Federal Rules of Civil Procedure.” Id. at 2. The Court further warned that failure to

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oppose a motion to dismiss permits the Court to grant the motion as unopposed. Id.

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Despite the warning, Plaintiffs have not filed an opposition brief or a statement in non-

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opposition in response to Defendant’s motion to dismiss. See Docket. Based on

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Plaintiffs’ failure to oppose the motion, Defendant Griswold requests the Court grant his

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motion. See Doc. No. 19.

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The Ninth Circuit has held that a district court may grant an unopposed motion to

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dismiss where a local rule permits, but does not require it to do so. See generally,

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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Here, Civil Local Rule 7.1.f.3.c

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provides, “[i]f an opposing party fails to file the papers in the manner required by Civil

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Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or

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other request for ruling by the court.” As such, the Court has the option of granting

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Defendant’s motion on the basis of Plaintiffs’ failure to oppose.1 Generally, public

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policy favors disposition of cases on their merits. See Hernandez v. City of El Monte,

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138 F.3d 393, 399 (9th Cir. 1998). However, a case cannot move forward toward

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resolution on the merits when the plaintiffs fail to defend their complaint against a Rule

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12 motion. Accordingly, the Court GRANTS Defendant’s unopposed motion to dismiss,

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and DISMISSES Plaintiffs’ claims as to Defendant Richardson Griswold without

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prejudice.2 The Clerk of Court is instructed to terminate this action as to Defendant

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Richardson Griswold.

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IT IS SO ORDERED.
Dated: July 24, 2018

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Also, Plaintiffs’ failure to comply with the provisions of Civil Local Rule 7.1.e.2 constitutes a failure
to comply with the provisions of this Court’s Local Rules, which serves as an additional basis for
dismissal under Civil Local Rule 41.1.b.
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Because Plaintiffs’ motion for injunctive relief seeks only to stop the receiver from selling the
property, the Court also DENIES Plaintiffs’ motion for an injunction. See Doc. No. 2.
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18cv634-MMA (JMA)