Opinion
No. CIV. S-06-1216 LKK/PAN (JFM).
August 2, 2006
ORDER
In an order filed June 30, 2006, the court ordered plaintiff's counsel to show cause in writing within ten (10) days why sanctions should not issue for failure to file a timely opposition in accordance with L.R. 78-230. The court continued the hearing on the motion to dismiss filed by defendant to August 7, 2006 and ordered plaintiff's counsel to file and serve the opposition no later than July 24, 2006 at 10:00 a.m.
Plaintiff's counsel has not responded to the court's Order to Show Cause. Plaintiff's counsel has also failed to file and serve the opposition brief as directed by the court's June 30, 2006 order. The court's docket reflects that plaintiff's counsel was not admitted to practice in the Eastern District of California until July 25, 2006, at which point, a document titled "Notice of Motion and Motion to Remand Or Transfer to Proper Venue" was filed. The entirety of that document states:
Please Take Notice That On August 7, 2006, at 10:00 a.m. or soon thereafter as the matter may be heard in the Courtroom of the Honorable Judge Lawrence K. Karlton, of the above entitled Court, Plaintiff Tasha Scott will and hereby does move for an order remanding this action to State Court as the Removal of the action is defective. The complaint in this action was filed in Alameda Superior Court and removal is only proper in the Northern District. Moreover, More over [sic] the Complaint is based primarily on State Court Claims and can be Amended so as to proceed solely on State Court claims.
The court, having considered plaintiff's counsel's repeated failure to file an opposition brief in the above-captioned matter, ORDERS as follows:
1. Counsel for plaintiff is SANCTIONED in the amount of three-hundred dollars ($300.00). This sum shall be paid to the Clerk of the Court no later than thirty (30) days from the effective date of this order. Counsel shall file an affidavit accompanying the payment of this sanction which states that it is paid personally by counsel, out of personal funds, and is not and will not be billed, directly or indirectly, to the client or in any way made the responsibility of the client as attorneys' fees or costs.
2. Plaintiff's counsel is directed to SERVE a copy of this order on her client within ten (10) days of this order, and to file an affidavit with the court which states that she has provided such copy as directed by the court.
3. Hearing on the motion to dismiss currently pending before the court is CONTINUED to August 28, 2006 at 10:00 a.m. on the Court's Law and Motion calendar. The Status Conference currently scheduled for August 7, 2006 is also CONTINUED to August 28, 2006 at 10:00 a.m.
4. Plaintiff's counsel is directed to file and serve an opposition brief no later than August 11, 2006 at 10:00 a.m.
Plaintiff's counsel is admonished that failure to file an opposition brief which responds to defendant's motion to dismiss, and which cites proper legal authority, may result in more stringent sanctions, dismissal of the above-captioned matter, and/or referral to the California State Bar. See L.R. 11-110 ("failure of counsel or of a party to comply with these Local rules or with any order of the Court may be grounds for the imposition by the Court of any and all sanctions . . . within the inherent power of the Court"); Fed.R.Civ.P. 41(b) ("Defendant may move for dismissal for failure of the plaintiff to prosecute or to comply with federal rules of civil procedure or any order of court); Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986) (District Courts have the inherent power to control their dockets and "in the exercise of that power, they may impose sanctions including, where appropriate, dismissal of a case.");Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal with prejudice for failure to file an opposition brief to a motion to dismiss and non-compliance with local rules).
5. The court shall disregard plaintiff's "Notice of Motion and Motion to Remand or Transfer for Proper Venue" (Document 10).
This "motion" was defectively noticed. On July 25, 2006, plaintiff's counsel requested that the "Motion to Remand or Transfer to Proper Venue" be heard on the court's August 7, 2006 Law and Motion calendar. Local Rule 78-230 states, however, that "a matter shall be set for hearing on the motion calendar of the Judge or Magistrate Judge to whom the action has been assigned or before whom the motion is to be heard, not less than twenty-eight (28) days after personal service and filing of the motion or not less than thirty-one (31) days after mailed or electronic service and filing of the motion." The Local Rules make clear that "[m]otions defectively noticed shall be filed, but not set for hearing . . . and that the moving party shall file and serve a new notice of motion setting forth a proper time and date." See L.R. 78-230, 5-135, 6-136(a). Although L.R. 78-230(e) allows parties to file "related or counter-motions" on the date prescribed for the filing of the opposition, it is clear to the court that these motions are not "related to the general subject matter" of the motion to dismiss pending on the court's docket.
Finally, the court notes that in filing this "Motion to Remand or Transfer to Proper Venue," plaintiff's counsel has failed to comply with the L.R. 78-230(b) which requires that the moving party file with the court "a notice of motion, motion, accompanying briefs, affidavits, if appropriate, and copies of all documentary evidence that the moving party intends to submit in support of the motion." On July 25, 2006, plaintiff's counsel filed a document containing one paragraph which is completely void of any argument, legal authority, or documentary evidence in support of such motion. On August 1, 2006, plaintiff filed "Points and Authorities" in support of the previous motion. This document, however, contains only several more paragraphs and still fails to provide the relevant legal authority and sufficient argument in support of such motion.
6. Plaintiff's request to appear telephonically at oral argument on the motion, contained within her status report, is DENIED.
IT IS SO ORDERED.