Opinion
Case No: C 11-2561 SBA.
October 27, 2011
ORDER Docket 7, 17
The parties are presently before the Court on Defendants' motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), which is set for hearing on November 1, 2011. Dkt. 7. Under the version of Local Rule 7-3 in effect at the time the motion was filed, any opposition or statement of non-opposition had to be filed no later than twenty-one days before the noticed hearing date. As such, pro se Plaintiff's response to the instant motion should have been filed by no later than October 11, 2011. Paragraph 6 of the Court's Standing Orders expressly warns as follows: " Failure to File Opposition: The failure of the opposing party to timely file a memorandum of points and authorities in opposition to any motion shall constitute a consent to the granting of the motion." Dkt. 17 at 5. Notwithstanding the requirements of Civil Local Rule 7-3, and the Court's warnings in its Standing Orders, Plaintiff has filed nothing in response to the pending motion.
"Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court." Ferdik v. Bonzelet 963 F.2d 1258, 1260 (9th Cir. 1992). As such, the failure to file an opposition to a motion to dismiss in the manner prescribed by the Court's Local Rules is grounds for dismissal. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Nevertheless, the Court will sua sponte afford pro se Plaintiff an additional opportunity to file a response to Defendants' motion to dismiss. While the Court does not countenance Plaintiff's disregard of the Local Rules, the Court grants such extension in consideration of less drastic alternatives to dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Nonetheless, Plaintiff is warned that the failure to file an opposition by the deadline set by the Court will be deemed grounds for dismissing the action under Rule 41(b), without further notice. Accordingly,
IT IS HEREBY ORDERED THAT:
1. Plaintiff shall file her opposition to Defendants' motion to dismiss by no later than November 4, 2011. If Plaintiff does not intend to prosecute this action, she should file a stipulation for dismissal under Rule 41(b), a request for dismissal under Rule 41(a), or a statement of non-opposition by that deadline. The failure to timely comply with this Order will result in the dismissal of the action. If applicable, Defendants shall file a reply by no later than November 11, 2011.
2. The motion hearing and Case Management Conference currently scheduled for November 1, 2011 are CONTINUED to the next available date of November 15, 2011 at 1:00 p.m. Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court, in its discretion, may resolve the motion without oral argument. The parties are advised to check the Court's website to determine whether a court appearance is required.
IT IS SO ORDERED.
Dated: October 25, 2011