Opinion
3:22-cv-00195-RBM-DEB
06-01-2022
DARO B. GROSS, Plaintiff, v. JOCELYN MICHELS STUFFLEBEAN, et al., Defendants.
ORDER (1) GRANTING MOVING DEFENDANTS' MOTION TO DISMISS AND (2) ORDERING PLAINTIFF TO SHOW CAUSE WHY REMAINING DEFENDANTS SHOULD NOT BE DISMISSED
[Doc. 16]
ORDER RE: MOTION TO DISMISS
HON. RUTH BERMUDEZ MONTENEGRO, UNITED STATES DISTRICT JUDGE
A. Procedural History
On March 4, 2022, Defendants Jocelyn Michels Stufflebean, John Stufflebean, David I. Gross, Mieke Strand, Lauren E. Jones, and Bart Call (the “Moving Defendants”) filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff Daro B. Gross's (“Plaintiff') complaint (the “MTD”). (Doc. 16.) The MTD provided for a hearing date of April 27, 2022. (Id.) Pursuant to Civil Local Rule 7.1(e)(2), Plaintiffs opposition to the MTD was due on April 13, 2022. Plaintiff failed to file a timely opposition to the MTD.
On May 10, 2022, the Court ordered Plaintiff to show cause why the action should not be dismissed for failure to file an opposition. (Doc. 19.) The Court granted Plaintiff until May 24, 2022 to file either an opposition to the MTD or a statement of non-opposition. (Id. at 2.) The Court made clear that, “[s]hould Plaintiff fail to file an opposition or a statement of non-opposition to the MTD in accordance with this Order, the Court will enter a final order dismissing this civil action based on Plaintiffs failure to prosecute in compliance with a court order.” (Id. (emphasis omitted).) The time for Plaintiff to file an opposition has (again) come and gone, but Plaintiff has still failed to abide by the Court's order.
B. Discussion
The Ninth Circuit has held that a district court may properly grant a motion to dismiss for failure to respond in accordance with the court's local rales. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (affirming district court's decision to dismiss pro se plaintiff s claims where, despite being “given ample time to respond, ” plaintiff failed to timely respond to motion to dismiss”). Here, Civil Local Rule 7.1(f)(3)(c) provides that failure to oppose or otherwise respond to a motion “may constitute a consent to the granting of a motion or other request for ruling by the Court.” Civ. L. R. 7.1(f)(3)(c).
“Before dismissing the action, the district court is required to weigh several factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases of their merits; and (5) the availability of less drastic sanctions.” Ghazali, 46 F.3d at 53. The Ninth Circuit has recognized that the first and fourth factors cut in opposite directions. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (finding that the first factor always weighs in favor of dismissal); Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir. 1998) (stating that the fourth factor always weighs against dismissal).
Upon consideration of the second, third, and fifth Ghazali factors, the Court finds that granting the Moving Defendants' MTD is appropriate. The second Ghazali factor weighs in favor of granting the Moving Defendants' MTD. Despite being given ample time to respond to the MTD, including additional time pursuant to the Court's May 10 order to show cause, Plaintiff has still failed to file an opposition or a statement of nonopposition. Plaintiff has not provided any excuse for his failure to file a timely opposition. “The Court must manage its docket to ensure the efficient provision of justice.” Nationwide Agribusiness Ins. Co. v. Yuma Cnty. Water Users Ass'n, No. 21-cv-78-JLS-AGS, 2021 WL 5203331, at *1 (S.D. Cal. Nov. 9, 2021). As to the third Ghazali factor, the Court finds no risk of prejudice to the Moving Defendants if their MTD is granted. Both the second and third Ghazali factors therefore weigh in favor of granting the MTD.
As to the fifth Ghazali factor, the Court finds that dismissal of the Moving Defendants is appropriate in this instance. “Where the Plaintiff does not oppose dismissal, it is unnecessary for the Court to consider less drastic alternatives.” Rodriguez v. Nationstar Mortg. LLC, No. 16-cv-5962-ODW-SK, 2016 WL 4581402, at *1 (C.D. Cal. Sept. 1, 2016). In any event, the Court previously did consider less drastic alternatives. Plaintiffs opposition to the MTD was due on April 13, 2022. After Plaintiff failed to timely oppose the MTD or file a statement of non-opposition, the Court issued an order to show cause why the case should not be dismissed. (Doc. 19.) The order to show cause gave Plaintiff an additional two weeks to file an opposition or statement of non-opposition, but Plaintiff again failed to respond in a timely fashion. (Id.) “[A] district court's warning to a party that [its] failure to obey the court's order will result in dismissal can satisfy the ‘consideration of alternatives' requirement.” Schmidt v. Washington Newspaper Publ'g Co., LLC, No. 20-cv-00830-BAS-NLS, 2020 WL 3487806, at *3 (S.D. Cal. June 26, 2020) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), as amended (May 22, 1992)).
The Moving Defendants have also referred the Court to Plaintiffs filing of an earlier action, which was dismissed without prejudice on February 3, 2022 by the Honorable Janis L. Sammartino (the “First Action”) for similar reasons. See Gross v. Stufflebean, No. 21-cv-02109-JLS-DEB. The complaint filed by Plaintiff in the First Action appears identical to the complaint Plaintiff filed here, alleging the same factual allegations and the same claims against the same parties. Judge Sammartino dismissed the First Action without prejudice following Plaintiff's failure to respond to a motion to dismiss filed by the Moving Defendants in that case. See Gross v. Stufflebean, No. 21-cv-02109-JLS-DEB, 2022 WL 327713, *2 (S.D. Cal. Feb. 3, 2022). There, like here, Judge Sammartino gave notice to Plaintiff that no opposition had been filed, but Plaintiff still failed to timely respond. Id. at * 1. At that time, Judge Sammartino granted Plaintiff leave to file an amended complaint within 28 days of the Court's order. Id. at *2. Plaintiff again failed to abide by the Court's Order and did not file an amended complaint. The Court therefore dismissed the action without prejudice and ordered the Clerk to close the case. See Gross, No. 21-cv-02109-JLS-DEB, Dkt. 14 (S.D. Cal. Mar. 8, 2022).
“Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.” Ghazali, 46 F.3d at 54 (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). Plaintiff has been given ample opportunity to prosecute his case against the Moving Defendants, both here and in the First Action. Plaintiff has missed multiple deadlines, including the Court's most recent Order requiring Plaintiff to file an opposition or statement of non-opposition by May 24, 2022. (Doc. 19.)
Accordingly, the Moving Defendants' MTD is GRANTED and Plaintiffs claims against Defendants Jocelyn Michels Stufflebean, John Stufflebean, David I. Gross, Mieke Strand, Lauren E. Jones, and Bart Call are DISMISSED WITHOUT PREJUDICE.
* * *
ORDER TO SHOW CAUSE
PLAINTIFF IS CAUTIONED that the time to properly serve the remaining Defendants (Julie A. Emede, Joseph F. Derrough, and William Hoyt) (the “Remaining Defendants”) appears to have expired. See FED. R. CIV. P. 4(M) (“IF A DEFENDANT IS NOT SERVED WITHIN 90 DAYS AFTER THE COMPLAINT IS FILED, THE COURT-ON MOTION OR ON ITS OWN AFTER NOTICE TO THE PLAINTIFF-MUST DISMISS THE ACTION WITHOUT PREJUDICE AGAINST THAT DEFENDANT OR ORDER THAT SERVICE BE MADE WITHIN A SPECIFIED TIME.”).
Under Federal Rule of Civil Procedure 4(e), a person may be served “pursuant to the law of the state in which the district court is located.” Fed.R.Civ.P. 4(e)(1). Here, Plaintiff filed his case in the Northern District of Texas (see Doc. 1), and the case was subsequently transferred to this Court on February 11, 2022. (Doc. 14.) Under both Texas and California law, however, the Court finds that service by email was insufficient to give the Remaining Defendants notice of this lawsuit.
Rule 106(b) of the Texas Rules of Civil Procedure provides for service by email only if the party has first attempted personal service and service by mail. Tex.R.Civ.P. 106(b). If personal service and service by mail are unsuccessful, then a party may file a motion and sworn statement asking the court to authorize service “in any other manner, including electronically by social media, email, or other technology, that the statement or other evidence shows will be reasonably effective to give the defendant notice of the suit.” Tex.R.Civ.P. 106(b)(2). “In determining whether to permit electronic service of process, a court should consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology.” Id. cmt. to 2020 Change. Courts have authorized service by email “when the record shows (1) diligent efforts to effect traditional service at a physical address and (2) that the defendant has recently communicated using the e-mail address proposed for service.” Selippos Tech., Ltd. v. First Mountain Bancorp, No. 12-cv-1508, 2013 WL 1181469, at *3 (S.D. Tex. Mar. 20, 2013) (collecting cases).
California courts “may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Cal. Civ. Proc. Code § 410.10. As such, California allows service in any way consistent with due process. See M. Lowenstein & Sons, Inc. v. Superior Ct., 145 Cal.Rptr. 814, 816 (Cal.Ct.App. 1978) (“Basically, the only limitation is ‘fair play and substantial justice,' the constitutional requirements of due process.”), disapproved of on other grounds in Johnson & Johnson v. Superior Ct., 38 Cal.3d 243, 255 n.7 (1985). The Ninth Circuit has held that, to “comport with constitutional notions of due process, ” “the method of service crafted by the district court must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'” Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016-17 (9th Cir. 2002) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).
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 that Plaintiff effected service on all Defendants by email without either the Court's or the Defendants' consent. (See Doc. 6.) Indeed, in moving for an extension of time to file their MTD, the Moving Defendants made clear that they were filing their responsive pleading notwithstanding Plaintiff s improper service and despite their lack of consent to service by email. (See Doc. 8 at 2 n.l (“Defendants contend the Complaint was not properly served on any of the Defendants because none of them agreed to accept service by email, which is the method by which Plaintiff s wife purported to effectuate service.”).) There is no indication that the Remaining Defendants consented to service by email in writing or otherwise. Although Plaintiff did file proofs of service for the Remaining Defendants (see Doc. 6), there is no accompanying documentation (i.e., a delivery receipt or read receipt) proving that the emails were received or opened by the Remaining Defendants.
It is also not clear to the Court that Plaintiff knew the correct email addresses for the Remaining Defendants, nor does it appear that Plaintiff had previously been in contact with any of the Remaining Defendants via email. For example, with respect to Defendant Derrough, Plaintiff appears to have emailed hospicevalley@sutterhealth.org, but it is not clear to the Court that this email address is connected to Defendant Derrough as opposed to Sutter Health generally. (Doc. 6 at 3.) With respect to Defendant Emede, Plaintiff emailed ssprobinfo@scscourt.org and Department 13@scscourt.org, which appear to be email addresses generally associated with California Superior Court, County of Santa Clara, as opposed to Defendant Emede personally. (Id. at 4.) Similarly, for Defendant Hoyt, Plaintiff emailed hhoyt@losgatosca.gov, which appears to be an email address generally associated with the city of Los Gatos, California, as opposed to Defendant Hoyt personally. (Id. at 7.)
Most importantly, it does not appear that service by email did give actual notice to the Remaining Defendants. None of the Remaining Defendants have acknowledged receipt of the summons or the complaint, nor have they appeared in the case. Plaintiff has provided no information that the Remaining Defendants acknowledged receipt of the emails sent by Plaintiff s process server, or that the Remaining Defendants are otherwise aware of this lawsuit.
The Remaining Defendants similarly failed to appear in the First Action, No. 21-cv-02109-JLS-DEB, before that case was closed by Judge Sammartino due to Plaintiffs failure to file an amended complaint. Based on a review of the docket in the First Action, 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.
On this record, service by email was not reasonably likely to-and likely did not- give the Remaining Defendants notice of this suit. See Hawkins v. Bank of Am., N.A., No. 17-cv-01954-BAS-AGS, 2018 WL 1616941, at *4 (S.D. Cal. Apr. 4, 2018) (denying request for email service where plaintiff did not communicate with defendant at email address, did not provide documentation showing that email address belonged to defendant, and did not provide any other evidence that defendant regularly communicated from that email address); First Time Videos, LLC v. FTV Programmgesellschaft MHB, No. 14-cv-01764-GMN, 2015 WL 5474650, at *2 (D. Nev. Sept. 16, 2015) (service by email not reasonably calculated to provide actual notice where plaintiff did not provide any evidence that it communicated with defendant via email address or any evidence otherwise indicating that email address was current and valid); Viahart, LLC v. Does 1-54, No. 18-cv-00604-RWS, 2019 WL 2127307, at *5 (E.D. Tex. May 15, 2019) (“Allowing Plaintiff to effectuate service of process by email, to an address that Plaintiff has not demonstrated is reasonably likely to reach the Defendants, without any confirmation of receipt of the email or verification that the email is valid, is not reasonably calculated to notify each of the 73 Defendants of the pendency of this suit.”). Accordingly, the Court hereby issues an order to show cause, with notice that the Court will dismiss this action as to the Remaining Defendants unless Plaintiff acts in accordance with this Order.
CONCLUSION
For the reasons outlined above:
1. The Moving Defendants' Motion to Dismiss (Doc. 16) is GRANTED and Plaintiffs claims against Defendants Jocelyn Michels Stufflebean, John Stufflebean, David I. Gross, Mieke Strand, Lauren E. Jones, and Bart Call are DISMISSED WITHOUT PREJUDICE.
2. This ORDER TO SHOW CAUSE constitutes notice to Plaintiff that the Court will dismiss this action without prejudice as to the Remaining Defendants on June 15, 2022, unless, on or before that date, Plaintiff files either: (1) proof that service of the summons and complaint was timely and properly effectuated on each of the Remaining Defendants; or (2) a declaration under penalty of perjury showing good cause for failure to timely effect service upon them, accompanied by a motion for leave to serve process outside of the 90-day period.
IT IS SO ORDERED.