(PS) Dave v. City of Sacramento, No. 2:2013cv01748 - Document 10 (E.D. Cal. 2013)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/19/13 VACATING the 11/20/13 hearing date on 5 Motion to Dismiss and RECOMMENDING that 5 Motion be granted; and alternatively, that this action be dismissed pursuant to FRCP 41(b), based on plaintiff's failure to prosecute the action and to comply with court orders and Local Rules; and that the Clerk be directed to close this case. Referred to Judge John A. Mendez; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)

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(PS) Dave v. City of Sacramento Doc. 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NIRUP DAVE, 12 Plaintiff, 13 14 No. 2:13-cv-1748-JAM-EFB PS v. ORDER AND FINDINGS AND RECOMMENDATIONS CITY OF SACRAMENTO, 15 Defendant. 16 On September 3, 2013, defendant filed a motion to dismiss the complaint for lack of 17 18 subject-matter jurisdiction and failure to state a claim.1 ECF No. 5. Defendant noticed the 19 hearing on that motion for October 9, 2013. Id. Defendant subsequently filed a motion to 20 continue the hearing date to October 30, 2013, which the court granted. ECF Nos. 7, 8. Accordingly, plaintiff was required to file an opposition to the motion, or a statement of 21 22 non-opposition thereto, on or before October 16, 2013. E.D. Cal. L.R. 230(c). Plaintiff failed to 23 file an opposition or statement of non-opposition by that date. Therefore, on October 23, 2013, 24 plaintiff was ordered to show cause, in writing, no later than November 6, 2013, why sanctions 25 should not be imposed for failure to timely file an opposition or a statement of non-opposition to 26 the pending motion. ECF No. 9. Hearing on defendant’s motion to dismiss was continued to 27 28 1 This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21). 1 Dockets.Justia.com 1 November 20, 2013, and plaintiff was ordered to file an opposition or a statement of non- 2 opposition to defendant’s motion to dismiss no later than November 6, 2013. The order 3 admonished plaintiff that “[f]ailure of plaintiff to file an opposition to the motion will be deemed 4 a statement of non-opposition thereto, and may result in a recommendation that this action be 5 dismissed for lack of prosecution and/or for failure to comply with court orders and this court’s 6 Local Rules.” Id. 7 Although the deadline has passed, plaintiff has not filed a response to the order to show 8 cause, nor has he filed an opposition or statement of non-opposition to defendant’s motion to 9 dismiss.2 Accordingly, the court deems plaintiff’s failure to respond as a waiver of opposition to 10 the motion. Moreover, the defendant’s motion appears to have merit. The complaint is devoid of 11 any factual allegations that could state a cognizable claim or establish that this court has 12 jurisdiction over the present dispute. ECF No. 1; see 28 U.S.C. §§ 1331 & 1332. 13 14 Accordingly, it is hereby ORDERED that the November 20, 2013 hearing on defendant’s motion to dismiss, ECF No. 5, is vacated. 15 Further, it is RECOMMENDED that: 16 1. Defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 17 (6), ECF No. 5, be granted; and alternatively, 18 2. That this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based 19 on plaintiff’s failure to prosecute the action and to comply with court orders and Local Rules; and 20 3. The Clerk be directed to close this case. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 26 ///// 27 28 2 This fact alone warrants dismissal of this action for failure to prosecute and failure to comply with court orders. See Fed. R. Civ. P. 41(b); E.D. Cal. L.R. 110. 2 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: November 19, 2013. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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