(PS) Sharma v. Griswold

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 NARENDRA SHARMA, No. 2:19–cv–1731–MCE–KJN (PS) 12 Plaintiff, ORDER VACATING HEARING AND SETTING NEW BRIEFING SCHEDULE, 13 v. AND ORDER FOR PLAINTIFF TO SHOW CAUSE 14 RICHARDSON C. GRISWOLD, (ECF No. 10) 15 Defendant. [16] 17 Plaintiff filed an action against Defendant on September 3, 2019, and filed a first amended 18 complaint on October 17. (ECF Nos. 1, 6.) On November 1, Defendant filed a motion to 19 dismiss, setting the matter for a hearing on December 5. (ECF No. 10.) Under the Court’s local 20 rules, Plaintiff was obligated to file his opposition (or statement of non–opposition) by November 21 22. See E.D. Cal. L.R. 230(c) (“Opposition, if any, to the granting of the motion shall be in 22 writing and shall be filed and served not less than fourteen (14) days preceding the noticed (or 23 continued) hearing date. A responding party who has no opposition to the granting of the motion 24 shall serve and file a statement to that effect, specifically designating the motion in question.”). 25 The Court’s records indicate that Plaintiff failed to file his opposition (or statement of 26 non–opposition) by the required date. Thus, under Rule 230(c), Plaintiff has forfeited his right to 27 be heard in opposition to the motion at oral argument. [28] 1 Local Rule 230(c) also contemplates that “failure to file a timely opposition may also be 2 construed by the Court as a non-opposition to the motion.” However, given Plaintiff’s pro se 3 status, the Court will instead order Plaintiff to follow the rules before construing his silence as 4 non–opposition. Therefore, the Court will vacate the December 5th hearing and set a new 5 briefing schedule for the parties. The Court will not reset the oral arguments, at this time. 6 Instead, the matter will be taken under submission once the briefing is submitted. 7 The Court’s extension of time does not end the inquiry. Generally, the Court believes that 8 granting an additional response period is warranted for individuals pursuing relief without the aid 9 of an attorney––given the preference to resolve cases on their merits. However, this is not 10 Plaintiff’s first action in federal court, and prior judges in this court have explained to Plaintiff his 11 obligation to follow the rules––including this exact rule. See Case No. 2:19-cv-00601-TLN-DB 12 at ECF No. 17 “Order to Show Cause” (describing the requirements of Local Rule 230(c), noting 13 Plaintiff’s failure to submit an opposition to the defendants’ motion to dismiss, and warning that 14 his case may be dismissed for failure to prosecute); Case No. 2:17-CV-00487-MCE-AC at ECF 15 No. 44 “Order to File Opposition” (noting that Plaintiff failed to file opposition to the defendants’ 16 motion to dismiss and motion to strike, as required by Local Rule 230(c)). Plaintiff’s history of 17 casual disregard for the court’s rules is troublesome and warrants an additional sanction–– 18 especially given his knowledge of this exact issue. Outright dismissal of the action at this point is 19 unwarranted. Thus, the Court imposes a $250 sanction on Plaintiff’s repeated failure to follow 20 the Court’s rules. Smith v. Frank, 923 F.2d 139, 142 (9th Cir. 1991) (“For violations of the local 21 rules, sanctions may be imposed[.]”); Zambrano v. City of Tustin, 885 F.2d 1473, 1480 (9th 22 Cir.1989) (“[C]onduct amounting to recklessness, gross negligence, repeated—although 23 unintentional—flouting of court rules, or willful misconduct” is required before monetary 24 sanctions can be imposed under local rules); see also Lodermeier v. Toys "R" Us, Inc., 1994 WL 25 872957, at *1 (E.D. Cal. June 7, 1994) (issuing a $150 monetary sanction in 1994 for the 26 plaintiff’s failure to file an opposition in accordance with Local Rule 230(c)); Korte v. Chico 27 Unified Sch. Dist., 1988 WL 168521 , at *2 (E.D. Cal. Oct. 14, 1988), aff'd, 888 F.2d 130 (9th 28 Cir. 1988) (monetary sanctions warranted for failing to follow Local Rule 230(c)). 1 Accordingly, it is HEREBY ORDERED: 2 1. The hearing on Defendant’s motion to dismiss (ECF No. 10) is VACATED; 3 2. Plaintiff shall file either an opposition to Defendant’s motion or a statement of non4 opposition by 4:00 p.m. on December 9, 2019; 5 3. Defendant’s reply, if any, will now be due by December 16; 6 4. Defendant’s motion to dismiss will be taken under submission without oral argument, as 7 per Local Rule 230(g), after the expiration of the briefing period; 8 5. Based on Plaintiffs repeated failure to comply with the Court’s local rules, Plaintiff shall 9 pay the Clerk of the Court $250 in monetary sanctions by 4:00 p.m. December 9, 2019; 10 and ll 6. Failure to follow the Court’s orders, the Federal Rules of Civil Procedure, or the Court’s 12 local rules may result in further sanctions, including dismissal of Plaintiff's case with 13 prejudice under Rule 41(b). 14 IT IS SO ORDERED. 15 || Dated: November 26, 2019 Aectl Aharon 17 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE [18] 19 shar.1731