United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION FOR RELIEF FROM DEADLINE AND
GRANTING MOTION TO DISMISS CLAIMS BY PLAINTIFF YUE
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant U.S. Bank National
Association (“U.S. Bank”)'s Motion to Dismiss
all Claims against U.S. Bank by Plaintiff Yue Gu and
Plaintiff Gu's Motion for Relief from Deadline for
Responding to the same Motion. Dkts. #167 and #189.
Rule of Civil Procedure 6(b)(1)(A) allows the Court, in its
discretion, to extend the time for a party to respond
“for good cause.” However, “[a] motion for
relief from a deadline should, whenever possible, be filed
sufficiently in advance of the deadline to allow the court to
rule on the motion prior to the deadline.” LCR 7(j).
Parties should not assume that the motion will be granted and
must comply with the existing deadline unless the court
orders otherwise.” Id.
Gu's Motion for relief from a deadline was filed on
October 24, 2019- a few days before the deadline to respond
to Defendant's Motion to Dismiss but late enough that the
Court could not rule on it prior to the deadline. Plaintiff
Gu did not file an opposition to the Motion to Dismiss,
instead assuming the Motion for Relief would be granted.
Plaintiff Gu has violated Local Rule 7(j). Plaintiff Gu's
reasons for requesting the extension are too thin. Gu relies
on a separate Motion for counsel to withdraw, still pending
before the Court. That Motion is based on vague disagreements
between client and counsel. Gu argues that perhaps, once
current counsel withdraws, he will be able to file an
opposition. See Dkt. #189. The Court believes this
argument is half-hearted at best, given that the factual
basis for the underlying Motion to Dismiss is Gu's
repeated failure to participate in discovery. See
Dkt. #167. That Plaintiff Gu cannot be bothered to file an
opposition is consistent with U.S. Bank's underlying
accusations and inconsistent with a finding of good cause.
The Court agrees with U.S. Bank's analysis that
“[t]here is nothing in either motion indicating that
Mr. Gu supports the actions of his attorneys, or desires to
engage new counsel, or that he personally seeks, or
reasonably needs, an extension of time.” Dkt. #194 at
3. Accordingly, the Court denies Gu's Motion.
to the Motion to Dismiss, U.S. Bank argues that Gu's
claims should be dismissed under Rules 41(b) and 37(b)(2)(A)
because he has failed to prosecute his claims, has violated
the Civil Rules, and has violated this Court's orders.
Dkt. #167 at 6. U.S. Bank runs through the factors set forth
in Malone v. U.S. Postal Serv., 833 F.2d 128, 130
(9th Cir. 1987) for failure to comply with court orders.
See Id. at 7-9.
Involuntary Dismissal; Effect. If the plaintiff fails to
prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against
it. Unless the dismissal order states otherwise, a dismissal
under this subdivision (b) and any dismissal not under this
rule-except one for lack of jurisdiction, improper venue, or
failure to join a party under Rule 19-operates as an
adjudication on the merits.
Fed. R. Civ. P. 41(b). Rule 37(b)(2)(A) states, in part:
“If a party… fails to obey an order to provide
or permit discovery, including an order under Rule 26(f), 35,
or 37(a), the court where the action is pending may issue
further just orders. They may include the following….
dismissing the action or proceeding in whole or in
part… Fed.R.Civ.P. 37(b)(2)(A). This Court's Local
Rule 7(b)(2) states: “Except for motions for summary
judgment, if a party fails to file papers in opposition to a
motion, such failure may be considered by the court as an
admission that the motion has merit.”
Court has reviewed U.S. Bank's briefing and considered
Plaintiff Gu's failure to file a timely opposition. Given
Gu's failure to comply with discovery requests and this
Court's prior Order regarding the same and considering
the public's interest in expeditious resolution of
litigation, the Court's need to manage its docket, the
risk of prejudice to Defendants, the public policy favoring
disposition of cases on their merits, and the availability of
less drastic sanctions, U.S. Bank has demonstrated that
dismissal is warranted. See Dkt. #167 at 7 - 9
(citing Malone, supra).
reviewed the relevant pleadings, the declarations and
exhibits attached thereto, and the remainder of the record,
the Court hereby finds and ORDERS:
1. Plaintiff Gu's Motion for Relief from a Deadline (Dkt.
#189) is DENIED.
2. Defendant U.S. Bank's Motion to Dismiss all Claims
against U.S. Bank by Plaintiff Yue Gu (Dkt. #167) is GRANTED.
All claims against U.S. Bank by Plaintiff ...