Gross v. Stufflebean

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 |} DARO B. GROSS, Case No.: 3:22-cv-00195-RBM-DEB Plainut | ORDER (1) GRANTING MOVING 13 || Vv. DEFENDANTS’ MOTION TO 14 |] JOCELYN MICHELS PLAINTIFF TO SHOW CAUSE 15 , ° WHY REMAINING DEFENDANTS 16 Defendants.| SHOULD NOT BE DISMISSED 17 [Doc. 16] [18] 19 ORDER RE: MOTION TO DISMISS 20 A. Procedural History 21 On March 4, 2022, Defendants Jocelyn Michels Stufflebean, John Stufflebean, 22 David I. Gross, Mieke Strand, Lauren E. Jones, and Bart Call (the “Moving Defendants”) 23 || fled a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff 24 || Daro B. Gross’s (“Plaintiff”) complaint (the “MTD”). (Doc. 16.) The MTD provided for 25 hearing date of April 27, 2022. (Id.) Pursuant to Civil Local Rule 7.1(e)(2), □□□□□□□□□□□ 26 opposition to the MTD was due on April 13, 2022. Plaintiff failed to file a timely 27 opposition to the MTD. 28 On May 10, 2022, the Court ordered Plaintiff to show cause why the action should 1 be dismissed for failure to file an opposition. (Doc. 19.) The Court granted Plaintif 2 until May 24, 2022 to file either an opposition to the MTD or a statement of non-opposition. 3 at 2.) The Court made clear that, “[sJhould Plaintiff fail to file an opposition or @ 4 || statement of non-opposition to the MTD in accordance with this Order, the Court will enter 5 j/a final order dismissing this civil action based on Plaintiffs failure to prosecute in 6 ||compliance with a court order.” (Ud. (emphasis omitted).) The time for Plaintiff to file an 7 opposition has (again) come and gone, but Plaintiff has still failed to abide by the Court’s 8 |] order. 9 B. Discussion 10 The Ninth Circuit has held that a district court may properly grant a motion to 11 ||dismiss for failure to respond in accordance with the court’s local rules. See Ghazali v. 12 || Moran, 46 F.3d 52, 54 (9th Cir. 1995) (affirming district court’s decision to dismiss pro se 13 plaintiffs claims where, despite being “given ample time to respond,” plaintiff failed tc 14 ||timely respond to motion to dismiss”). Here, Civil Local Rule 7.1(£)(3)(c) provides that 15 || failure to oppose or otherwise respond to a motion “may constitute a consent to the granting 16 |/of a motion or other request for ruling by the Court.” Civ. L. R. 7.1(£)(3)(c). 17 “Before dismissing the action, the district court is required to weigh several factors: 18 ||“(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 19 ||manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 20 disposition of cases of their merits; and (5) the availability of less drastic sanctions.” 21 || Ghazali, 46 F.3d at 53 . The Ninth Circuit has recognized that the first and fourth factors 22 ||cut in opposite directions. See Yourish v. Cal. Amplifier, 191 F.3d 983 , 990 (9th Cir. 1999) 23 || (finding that the first factor always weighs in favor of dismissal); Hernandez v. City of □□ 24 || Monte, 138 F.3d 393 , 401 (9th Cir. 1998) (stating that the fourth factor always weighs 25 against dismissal). 26 Upon consideration of the second, third, and fifth Ghazali factors, the Court finds 27 ||that granting the Moving Defendants’ MTD is appropriate. The second Ghazali factor 28 || weighs in favor of granting the Moving Defendants’ MTD. Despite being given ample 1 time to respond to the MTD, including additional time pursuant to the Court’s May 10 2 ||order to show cause, Plaintiff has still failed to file an opposition or a statement of non3 ||opposition. Plaintiff has not provided any excuse for his failure to file a timely opposition. 4 |\\“The Court must manage its docket to ensure the efficient provision of justice.” 5 || Nationwide Agribusiness Ins. Co. v. Yuma Cnty. Water Users Ass’n, No. 21-cv-78-JLS6 AGS, 2021 WL 5203331 , at *1 (S.D. Cal. Nov. 9, 2021). As to the third Ghazali factor, 7 |jthe Court finds no risk of prejudice to the Moving Defendants if their MTD is granted. 8 || Both the second and third Ghazali factors therefore weigh in favor of granting the MTD. 9 As to the fifth Ghazali factor, the Court finds that dismissal of the Moving 10 || Defendants is appropriate in this instance. “Where the Plaintiff does not oppose dismissal, 1] is unnecessary for the Court to consider less drastic alternatives.” Rodriguez v. 12 || Nationstar Mortg. LLC, No. 16-cv-5962-ODW-SK, 2016 WL 4581402 , at *1 (C.D. Cal. 13 || Sept. 1, 2016). In any event, the Court previously did consider less drastic alternatives. 14 Plaintiff's opposition to the MTD was due on April 13, 2022. After Plaintiff failed to 15 timely oppose the MTD or file a statement of non-opposition, the Court issued an order to 16 ||show cause why the case should not be dismissed. (Doc. 19.) The order to show cause 17 || gave Plaintiff an additional two weeks to file an opposition or statement of non-opposition, 18 || but Plaintiff again failed to respond in a timely fashion. (/d.) “[A] district court’s warning 19 ||to a party that [its] failure to obey the court’s order will result in dismissal can satisfy the 20 || ‘consideration of alternatives’ requirement.” Schmidt v. Washington Newspaper Publ’g 21 LLC, No. 20-cv-00830-BAS-NLS, 2020 WL 3487806 , at *3 (S.D. Cal. June 26, 2020) 22 ||(quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), as amended (May 22, 23 1992)). 24 The Moving Defendants have also referred the Court to Plaintiff's filing of an earlier 25 || action, which was dismissed without prejudice on February 3, 2022 by the Honorable Janis 26 ||L. Sammartino (the “First Action”) for similar reasons. See Gross v. Stufflebean, No. 2127 cv-02109-JLS-DEB. The complaint filed by Plaintiff in the First Action appears identical 28 ||to the complaint Plaintiff filed here, alleging the same factual allegations and the same 1 ||claims against the same parties. Judge Sammartino dismissed the First Action without 2 || prejudice following Plaintiffs failure to respond to a motion to dismiss filed by the Moving 3 ||Defendants in that case. See Gross v. Stufflebean, No. 21-cv-02109-JLS-DEB, 2022 WL 4 ||327713, *2 (S.D. Cal. Feb. 3, 2022). There, like here, Judge Sammartino gave notice to 5 || Plaintiff that no opposition had been filed, but Plaintiff still failed to timely respond. Id. at 6 At that time, Judge Sammartino granted Plaintiff leave to file an amended complaint 7 || within 28 days of the Court’s order. Jd. at *2. Plaintiff again failed to abide by the Court’s 8 ||Order and did not file an amended complaint. The Court therefore dismissed the action 9 || without prejudice and ordered the Clerk to close the case. See Gross, No. 21-cv-0210910 || JLS-DEB, Dkt. 14 (S.D. Cal. Mar. 8, 2022). 11 “Although we construe pleadings liberally in their favor, pro se litigants are bound 12 ||by the rules of procedure.” Ghazali, 46 F.3d at 54 (citing King v. Atiyeh, 814 F.2d 565, 13 (9th Cir. 1987)). Plaintiff has been given ample opportunity to prosecute his case 14 |/against the Moving Defendants, both here and in the First Action. Plaintiff has missed 15 |{multiple deadlines, including the Court’s most recent Order requiring Plaintiff to file an 16 || opposition or statement of non-opposition by May 24, 2022. (Doc. 19.) 17 Accordingly, the Moving Defendants’ MTD is GRANTED and Plaintiff's claims 18 |/against Defendants Jocelyn Michels Stufflebean, John Stufflebean, David I. Gross, Mieke 19 Strand, Lauren E. Jones, and Bart Call are DISMISSED WITHOUT PREJUDICE. 20 KOK 21 ORDER TO SHOW CAUSE 22 PLAINTIFF IS CAUTIONED that the time to properly serve the remaining 23 ||Defendants (Julie A. Emede, Joseph F. Derrough, and William Hoyt) (the “Remaining 24 ||Defendants”) appears to have expired. See FED. R. Civ. P. 44m) (“If a defendant is not 25 ||served within 90 days after the complaint is filed, the court—on motion or on its own after 26 ||notice to the plaintiff—must dismiss the action without prejudice against that defendant or 27 |\order that service be made within a specified time.”). 28 Under Federal Rule of Civil Procedure 4(e), a person may be served “pursuant to the 1 ||law of the state in which the district court is located.” FED. R. Civ. P. 4(e)(1). Here, 2 ||Plaintiff filed his case in the Northern District of Texas (see Doc. 1), and the case was 3 || subsequently transferred to this Court on February 11, 2022. (Doc. 14.) Under both Texas 4 California law, however, the Court finds that service by email was insufficient to give 5 ||the Remaining Defendants notice of this lawsuit. 6 Rule 106(b) of the Texas Rules of Civil Procedure provides for service by email only 7 ifthe party has first attempted personal service and service by mail. Tex. R. Civ. P. 106(b). 8 Ifpersonal service and service by mail are unsuccessful, then a party may file a motion and 9 }|sworn statement asking the court to authorize service “in any other manner, including 10 |Jelectronically by social media, email, or other technology, that the statement or other 11 ||evidence shows will be reasonably effective to give the defendant notice of the suit.” Tex. 12 ||R. Civ. P. 106(b)(2). “In determining whether to permit electronic service of process, a 13 |;}court should consider whether the technology actually belongs to the defendant and 14 || whether the defendant regularly uses or recently used the technology.” Jd. cmt. to 2020 15 ||Change. Courts have authorized service by email “when the record shows (1) diligent 16 ||efforts to effect traditional service at a physical address and (2) that the defendant has 17 ||recently communicated using the e-mail address proposed for service.” Selippos Tech., 18 || Lid. v. First Mountain Bancorp, No. 12-cv-1508, 2013 WL 1181469 , at *3 (S.D. Tex. Mar. 19 || 20, 2013) (collecting cases). 20 California courts “may exercise jurisdiction on any basis not inconsistent with the 21 Constitution of this state or of the United States.” Cal. Civ. Proc. Code § 410.10 . As such, 22 || California allows service in any way consistent with due process. See M. Lowenstein & 23 ||Sons, Inc. v. Superior Ct., 145 Cal. Rptr. 814, 816 (Cal. Ct. App. 1978) (Basically, the 24 || only limitation is ‘fair play and substantial justice,’ the constitutional requirements of due 25 ||process.”), disapproved of on other grounds in Johnson & Johnson v. Superior Ct., 38 Cal. 26 243, 255 n.7 (1985). The Ninth Circuit has held that, to “comport with constitutional 27 ||notions of due process,” “the method of service crafted by the district court must be 28 || ‘reasonably calculated, under all the circumstances, to apprise interested parties of the 1 |}pendency of the action and afford them an opportunity to present their objections.’” Rio 2 || Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016-17 (9th Cir. 2002) (quoting 3 || Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). 4 Here, under either Texas or California law, service by email was not reasonably ||calculated to give notice to the Remaining Defendants. A review of the docket suggests 6 || that Plaintiff effected service on all Defendants by email without either the Court’s or the 7 || Defendants’ consent. (See Doc. 6.) Indeed, in moving for an extension of time to file their 8 || MTD, the Moving Defendants made clear that they were filing their responsive pleading 9 notwithstanding Plaintiffs improper service and despite their lack of consent to service by 10 jjemail. (See Doc. 8 at 2 n.J (“Defendants contend the Complaint was not properly served 11 |/on any of the Defendants because none of them agreed to accept service by email, which 12 the method by which Plaintiff's wife purported to effectuate service.”).) There is no 13 |/indication that the Remaining Defendants consented to service by email in writing or 14 otherwise. Although Plaintiff did file proofs of service for the Remaining Defendants (see 15 || Doc. 6), there is no accompanying documentation (i.e., a delivery receipt or read receipt) 16 || proving that the emails were received or opened by the Remaining Defendants. 17 It is also not clear to the Court that Plaintiff knew the correct email addresses for the 18 ||Remaining Defendants, nor does it appear that Plaintiffhad previously been in contact with 19 |lany of the Remaining Defendants via email. For example, with respect to Defendant 20 ||Derrough, Plaintiff appears to have emailed hospicevalley@sutterhealth.org, but it is not 21 |/clear to the Court that this email address is connected to Defendant Derrough as opposed 22 ||to Sutter Health generally. (Doc. 6 at 3.) With respect to Defendant Emede, Plaintiff 23 ||emailed ssprobinfo@scscourt.org and Department13@scscourt.org, which appear to be 24 |jemail addresses generally associated with California Superior Court, County of Santa 25 |}Clara, as opposed to Defendant Emede personally. (/d. at 4.) Similarly, for Defendant 26 ||Hoyt, Plaintiff emailed hhoyt@losgatosca.gov, which appears to be an email address 27 || generally associated with the city of Los Gatos, California, as opposed to Defendant Hoyt 28 personally. (/d. at 7.) Most importantly, it does not appear that service by email did give actual notice to 2 Remaining Defendants. None of the Remaining Defendants have acknowledged 3 ||receipt of the summons or the complaint, nor have they appeared in the case. Plaintiff has 4 |/provided no information that the Remaining Defendants acknowledged receipt of the 5 |/emails sent by Plaintiff's process server, or that the Remaining Defendants are otherwise 6 ||aware of this lawsuit. ! 7 On this record, service by email was not reasonably likely to—and likely did not— 8 || give the Remaining Defendants notice of this suit. See Hawkins v. Bank of Am., N.A., No. 9 17-cv-01954-BAS-AGS, 2018 WL 1616941 , at *4 (S.D. Cal. Apr. 4, 2018) (denying 10 |/request for email service where plaintiff did not communicate with defendant at email 11 address, did not provide documentation showing that email address belonged to defendant, 12 did not provide any other evidence that defendant regularly communicated from that 13 ||email address); First Time Videos, LLC v. FTV Programmgesellschaft MHB, No. 14-cv14 ||01764-GMN, 2015 WL 5474650 , at *2 (D. Nev. Sept. 16, 2015) (service by email not 15 j|reasonably calculated to provide actual notice where plaintiff did not provide any evidence 16 it communicated with defendant via email address or any evidence otherwise 17 indicating that email address was current and valid); Viahart, LLC v. Does 1-54, No. 1818 cv-00604-RWS, 2019 WL 2127307 , at *5 (E.D. Tex. May 15, 2019) (“Allowing Plaintiff 19 ||to effectuate service of process by email, to an address that Plaintiff has not demonstrated 20 reasonably likely to reach the Defendants, without any confirmation of receipt of the 21 |jemail or verification that the email is valid, is not reasonably calculated to notify each of 22 ||the 73 Defendants of the pendency of this suit.”). Accordingly, the Court hereby issues an 23 || order to show cause, with notice that the Court will dismiss this action as to the Remaining [25] 36 ' The Remaining Defendants similarly failed to appear in the First Action, No. 21-cv02109-JLS-DEB, before that case was closed by Judge Sammartino due to Plaintiff's 27 || failure to file an amended complaint. Based on a review of the docket in the First Action, 28 Plaintiff did not file a proof of service with respect to the Remaining Defendants, and it is not clear that the Remaining Defendants had notice of the First Action. 1 ||Defendants unless Plaintiff acts in accordance with this Order. 2 CONCLUSION 3 For the reasons outlined above: 4 1. The Moving Defendants’ Motion to Dismiss (Doc. 16) is GRANTED and 5 ||PlaintifPs claims against Defendants Jocelyn Michels Stufflebean, John Stufflebean, 6 ||David I. Gross, Mieke Strand, Lauren E. Jones, and Bart Call are DISMISSED 7 || WITHOUT PREJUDICE. 8 2. This ORDER TO SHOW CAUSE constitutes notice to Plaintiff that the 9 Court will dismiss this action without prejudice as to the Remaining Defendants on June 10 |/15, 2022, unless, on or before that date, Plaintiff files either: (1) proof that service of the 11 |}summons and complaint was timely and properly effectuated on each of the Remaining 12 || Defendants; or (2) a declaration under penalty of perjury showing good cause for failure to 13 ||timely effect service upon them, accompanied by a motion for leave to serve process 14 || outside of the 90-day period. 15 IT IS SO ORDERED. 16 ||DATE: June 1, 2022 2 C i 18 ON. RUTH BER DEZ MONTENEGRO UNITED STATES DISTRICT JUDGE