Pardo et al v. The County of San Diego et al
Filing
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Order Clarifying Plaintiff's Filing Obligations re (ECF No. 9 ). Signed by Judge Janis L. Sammartino on 10/25/2024.(mef)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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FRANCISCO S. PARDO, M.D.;
RICARDO JOAQUIN; FRANCISCO
PARDO; MARIA-AMELIA PARDO; and
VICTOR PARDO,
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Case No.: 24-CV-1062 JLS (SBC)
ORDER CLARIFYING
PLAINTIFFS’ FILING
OBLIGATIONS
Plaintiffs,
(ECF No. 9)
v.
THE COUNTY OF SAN DIEGO; REINA
LOPEZ; THOMAS RUFF; LONNIE
LAU; KIM GIARDIA; DHHS
DIRECTOR; NICK MACCHIONE; and
DOES 1–50,
Defendants.
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Presently before the Court are Defendant County of San Diego’s (“County”) Motion
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to Dismiss Plaintiffs’ First Amended Complaint (“Mot.,” ECF No. 9) and its Memorandum
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of Points and Authorities in Support thereof (“Mem.,” ECF No. 9-1). Plaintiffs failed to
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oppose the Motion on October 3, 2024, as required by Civil Local Rule 7.1(e)(2), see
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generally Docket, and the County filed a Notice of Plaintiff’s non-opposition to the Motion
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on October 10, 2024. See ECF No. 10 (“Not.”). The same day the County filed its Notice,
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Plaintiffs filed an Opposition to the Motion to Dismiss (“Opp’n,” ECF No. 12) and a
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24-CV-1062 JLS (SBC)
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Supplemental Opposition to the Motion to Dismiss (“Suppl. Opp’n,” ECF No. 13).
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In their Opposition, Plaintiffs state that they “never received the Motion” and only
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became aware of it because the County filed its Notice. Opp’n at 2. In their Supplemental
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Opposition, Plaintiffs add that the County appears to have served its Motion on Plaintiffs
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using the wrong email address; thus, Plaintiffs’ ignorance. Suppl. Opp’n at 1.1 Because
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of this oversight, Plaintiffs “request that this motion be reset.” Id. at 2.
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Plaintiffs’ excuse is less than convincing. This is not the first time Plaintiffs failed
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to oppose a motion. The County initially moved to dismiss Plaintiffs’ original Complaint,
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ECF No. 4, and Plaintiffs did not file an opposition then either. See generally Docket. The
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Court granted the County’s first Motion to Dismiss pursuant to Local Rule 7.1(f)(3)(c), but
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it granted Plaintiffs leave to file an amended complaint. ECF No. 7 at 4. Plaintiffs did
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indeed receive notice of this docket entry and filed their Amended Complaint in a timely
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manner. See First Amended Complaint (“FAC”), ECF No. 8. Interestingly, the County
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attached a Declaration of Service with their first Motion to Dismiss, which, like the second
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Motion to Dismiss, contained a clerical error when transcribing Plaintiffs’ counsel’s email
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address. See ECF No. 4-4 at 1. If Plaintiffs had actually suffered from a notice deficiency
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related to the first Motion to Dismiss, one might think that they would have resolved their
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concerns at that time. But they declined to raise the issue.
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One might also think that Plaintiffs would have maintained internal notes indicating
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when a response to the Complaint or Amended Complaint would have been due. The
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timeline for filing a responsive pleading is no mystery—even a novice attorney would
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know that the timeline for responding to an initial complaint is prescribed by Federal Rule
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of Civil Procedure 12(a) and the timeline for responding to an amended complaint is
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prescribed by Federal Rule of Civil Procedure 15(a). So it should have hardly been a
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surprise to Plaintiffs that the County would be filing a responsive pleading of some sort to
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Plaintiffs attached the Declaration of Service that the County contemporaneously filed with its Motion,
which indicated an email address for Plaintiff of joelacostaesq@,gmail.com. ECF No. 9-4. This appears
to be a clerical error.
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24-CV-1062 JLS (SBC)
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both the Complaint and the Amended Complaint. But, in the case of the Amended
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Complaint, Plaintiffs claim to have been caught completely off guard.
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All the more troubling are the Notices of Electronic Filing (“NEF”) that are
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automatically generated by the Court’s docket management system, CM/ECF. According
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to the NEF receipts for both the County’s first Motion to Dismiss and second Motion to
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Dismiss,
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joelacosta@hotmail.com. See ECF Nos. 4, 9. Under Southern District of California Local
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Rule 5.4(c), “[t]he NEF that is automatically generated by the Court’s Electronic Filing
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System constitutes service of the filed document on Filing Users.” And under Local Rule
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5.4(d), “[r]egistration as a Filing User constitutes consent to Electronic Service of all
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documents . . . .” Despite the apparent typo in counsel’s email address on the Declarations
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of Service filed by the County, the Declarations also clearly indicate that service was
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effected through CM/ECF, which obviates the need to attach the Declarations at all. See
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S.D. Cal. CivLR 5.4(c) (“A certificate of service is not required when a party electronically
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files a document on other Filing Users with the Court’s Electronic Filing System . . . .”).
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So the Court is inclined to agree with the County’s contention that the typos were
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“inconsequential.” See ECF No. 14 at 2.
the
NEF
was
electronically
mailed
to
Plaintiffs’
counsel
at
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In sum, the Court is highly skeptical of Plaintiffs’ assertion that they did not receive
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notice of the County’s Motion to Dismiss Plaintiffs’ First Amended Complaint. Despite
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the Court’s temptation to dismiss this case with prejudice for Plaintiffs’ repeated failure to
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oppose the County’s Motions to Dismiss, the Court will grant Plaintiffs one more
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opportunity to oppose the County’s Motion. Given that Plaintiffs have already been on
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actual notice of the Motion for at least two weeks and the Court’s preference for disposing
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of cases on their merits, Plaintiffs SHALL FILE an opposition to the County’s Motion to
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Dismiss Plaintiffs’ First Amended Complaint (ECF No. 9) within five (5) days of the date
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on which this Order is electronically docketed. Along with their opposition, Plaintiffs also
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SHALL FILE a more detailed explanation for their failure to oppose the Motion not to
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exceed five (5) pages by the same deadline. Should Plaintiffs fail to oppose the Motion or
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24-CV-1062 JLS (SBC)
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provide justification for their multiple filing failures, the Court will dismiss this civil action
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based on Plaintiffs’ failure to prosecute in compliance with a court order requiring a
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response. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Assuming
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Plaintiffs file an opposition, the County MAY FILE a reply within seven (7) days of the
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filing.
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IT IS SO ORDERED.
Dated: October 25, 2024
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24-CV-1062 JLS (SBC)
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