Sowinski v. California Air Resources Board ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD SOWINSKI,
Plaintiff-Appellant
v.
CALIFORNIA AIR RESOURCES BOARD, MARY
NICHOLS, DANIEL STERLING, PHIL SERNA,
JOHN EISENHUT, BARBARA RIORDAN, JOHN
BALMES, HECTOR DELATORRE, SANDRA BERG,
RON ROBERTS, ALEXANDER SHERIFFS, JOHN
GIOIA, JUDY MITCHELL, SRA INTERNATIONAL,
INC., MONITORING ANALYTICS, LLC,
Defendants-Appellees
MARKUT NORTH AMERICA, INC., DOES, 1-100,
Defendants
______________________
2017-1219
______________________
Appeal from the United States District Court for the
Central District of California in No. 8:15-cv-02123-JLS-
JCG, Judge Josephine L. Staton.
______________________
Decided: December 18, 2017
______________________
ANTHONY GEORGE GRAHAM, Graham & Martin LLP,
Santa Ana, CA, for plaintiff-appellant.
2 SOWINSKI v. CALIFORNIA AIR RESOURCES BOARD
GAVIN GERAGHTY MCCABE, Office of the Attorney
General, State of California Department of Justice, Oak-
land, CA, for defendants-appellees California Air Re-
sources Board, Mary Nichols, Daniel Sterling, Phil Serna,
John Eisenhut, Barbara Riordan, John Balmes, Hector
DeLaTorre, Sandra Berg, Ron Roberts, Alexander Sher-
iffs, John Gioia, Judy Mitchell.
NICHOLAS LEE, Arnold & Porter Kaye Scholer, LLP,
Los Angeles, CA, for defendant-appellee SRA Interna-
tional, Inc. Also represented by SEAN MORRIS, RYAN M.
NISHIMOTO.
JEFFREY C. MORGAN, Barnes & Thornburg LLP,
Atlanta, GA, for defendant-appellee Monitoring Analytics,
LLC. Also represented by Jeffrey Whitefield Mayes,
Monitoring Analytics, LLC, Eagleville, PA.
______________________
Before TARANTO, PLAGER, and CHEN, Circuit Judges.
PER CURIAM.
Appellant Dr. Richard Sowinski brought this action in
the United States District Court for the Central District
of California. The district court dismissed the action
because Dr. Sowinski did not oppose the motions to dis-
miss filed by appellees. We affirm.
I
On November 24, 2015, Dr. Sowinski filed a complaint
in the Superior Court of the State of California, County of
Orange, alleging patent infringement, elder abuse, and
violations of California Business and Professions Code
§ 17200 et seq. He named as defendants the California
Air Resources Board and Board members Mary Nichols,
Daniel Sterling, Phil Serna, John Eisenhut, Barbara
Riordan, John R. Balmes, Hector De La Torre, Sandra
SOWINSKI v. CALIFORNIA AIR RESOURCES BOARD 3
Berg, Ron Roberts, Alexander Sheriffs, John Gioia, and
Judy Mitchell (collectively, the State Defendants); SRA
International, Inc.; Markut North America, Inc.; Monitor-
ing Analytics, LLC; and Does 1–100. SRA removed the
case to the United States District Court of the Central
District of California on December 21, 2015.
On February 12, 2016, SRA, Monitoring Analytics,
and the State Defendants (collectively, appellees) filed
motions to dismiss. The parties stipulated that Dr.
Sowinski’s oppositions to the three motions would be due
no later than March 18. But Dr. Sowinski did not file any
opposition by the deadline. Instead, on March 31, almost
two weeks after the deadline, he filed a First Amended
Complaint. Appellees objected to the filing as untimely
and separately moved to have it stricken.
On May 4, after meeting and conferring, the parties
filed a joint stipulation to: (1) withdraw the First Amend-
ed Complaint, (2) withdraw the motion to strike the First
Amended Complaint, (3) postpone the hearing on the
motions to dismiss, and (4) postpone the scheduling
conference. The stipulation includes the following lan-
guage:
WHEREAS [Appellees’] agreement to continue the
hearing date does not: . . . (b) excuse [Appellant’s]
failure to timely file oppositions to the pending
Motions to Dismiss[] or (c) consent to a subse-
quent filing by [Appellant] of any oppositions to
the pending Motions to Dismiss.
J.A. 285–86. The stipulation also states that “the Parties
continue to believe that the Motions to Dismiss are poten-
tially case dispositive.” J.A. 286.
The court ruled on the stipulation on May 11. It
struck the First Amended Complaint and, as a result,
deemed as withdrawn appellees’ motion to strike the First
Amended Complaint. The court also denied the request
4 SOWINSKI v. CALIFORNIA AIR RESOURCES BOARD
for a hearing, noting that “[b]ecause [appellees’] three
Motions to Dismiss are unopposed, no hearing [was]
required.” J.A. 298. The court entered an order dated
May 11 taking the hearing off the calendar. Dr. Sowinski
did not seek reconsideration of that order.
On August 18, the court granted appellees’ motions to
dismiss under Central District of California Local Rule 7-
12, which states: “The failure to file any required docu-
ment, or the failure to file it within the deadline, may be
deemed consent to the granting or denial of the motion.”
Conducting a five-factor inquiry prescribed by the Ninth
Circuit for dismissal of an action for noncompliance with a
local rule, the court concluded that dismissal was appro-
priate. It further concluded that the dismissal should be
with prejudice because Dr. Sowinski “stipulated that ‘the
Motions to Dismiss are potentially case dispositive,’ but
nevertheless conceded and reaffirmed that [he] failed to
oppose.” J.A. 4. The court did not address the underlying
merits of the motions.
On September 19, Dr. Sowinski moved for reconsider-
ation of the August 18 dismissal order. Appellees opposed
the motion, stating, among other things, that Dr.
Sowinski had not followed Local Rule 7-3, which requires
any motion to include a statement confirming that a
meet-and-confer took place prior to the filing of the mo-
tion. On October 26, 2016, the district court struck the
motion for reconsideration, both because Dr. Sowinski had
violated Local Rule 7-3 and because the earlier dismissal
order was proper.
Dr. Sowinski timely appealed the October 26 order
striking his motion for reconsideration and the August 18
“final judgments.”
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(1) because a final judgment exists that resolves
all claims against all parties in the action. SafeTCare
Mfg., Inc. v. Tele-Made, Inc., 497 F.3d 1262, 1267 (Fed.
SOWINSKI v. CALIFORNIA AIR RESOURCES BOARD 5
Cir. 2007) (“For a judgment to be appealable to this court,
the district court must issue a judgment that decides or
dismisses all claims and counterclaims for each party or
that makes an express Rule 54(b) determination that
there is no just reason for delay.”). Final judgments as to
the claims against SRI, Monitoring Analytics, and the
State Defendants were entered on August 18, 2016.
Because there is nothing in the record to suggest that
named defendants Markut North America, Inc., and Does
1–100 were ever served, we do not consider them “parties”
for purposes of the final-judgment determination.
Woodard v. Sage Prods., Inc., 818 F.2d 841, 844 (Fed. Cir.
1987) (on matters of jurisdiction, this court “look[s] for
guidance in the decisions of the regional circuit to which
appeals from the district court would normally lie, as well
as those of other courts”) (internal citations omitted);
Patchick v. Kensington Publ’g Corp., 743 F.2d 675, 677
(9th Cir. 1984); see also Akhtar v. Mesa, 698 F.3d 1202,
1207 n.4 (9th Cir. 2012) (“Because the other defendants
named in the first amended complaint were not served
with process, the district court’s order dismissing [plain-
tiff’s] first amended complaint as to [the served defend-
ants] ‘may be considered final under Section 1291 for the
purpose of perfecting an appeal.’”) (citation omitted);
Hillis Motors, Inc. v. Hawaii Auto. Dealers’ Ass’n, 997
F.2d 581, 584 n.5 (9th Cir. 1993) (“Two unserved defend-
ants and Doe defendants were named in the complaint.
This does not affect the appealability of the district court’s
judgment.”).
II
Because the issue here involves a local procedural
rule not specific to patent matters, and general Ninth
Circuit standards for dismissal based on violations of such
a local rule, we apply the law of the Ninth Circuit in this
case. See RFR Indus., Inc. v. Century Steps, Inc., 477 F.3d
1348, 1351 (Fed. Cir. 2007); Biodex Corp. v. Loredan
Biomed., Inc., 946 F.2d 850, 857 & n.10 (Fed. Cir. 1991).
6 SOWINSKI v. CALIFORNIA AIR RESOURCES BOARD
Under Ninth Circuit law, we review the dismissal here for
abuse of discretion. See Hinton v. Pacific Enters., 5 F.3d
391, 395 (9th Cir. 1993) (“A determination of compliance
with local rules is reviewed under an abuse of discretion
standard.”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th
Cir. 1992) (“The trial court’s dismissal should not be
disturbed unless there is a definite and firm conviction
that the court below committed a clear error of judgment
in the conclusion it reached upon a weighing of the rele-
vant factors.”) (citations and quotation marks omitted).
We conclude that the district court did not abuse its
discretion in striking Dr. Sowinski’s motion to reconsider
the August 18 dismissal order or in dismissing with
prejudice in that order.
Central District of California Local Rule 7-3 states
that “counsel contemplating the filing of any motion shall
first contact opposing counsel to discuss thoroughly,
preferably in person, the substance of the contemplated
motion and any potential resolution.” C.D. Cal. L.R. 7-3.
The rule further states that the conference “shall take
place at least seven (7) days prior to the filing of the
motion.” Id. If the parties are unable to resolve their
differences, counsel for the moving party must include the
following statement in the notice of motion: “This motion
is made following the conference of counsel pursuant to
L.R. 7-3 which took place on (date).” Id.
In this case, Dr. Sowinski’s motion for reconsideration
did not contain the required statement confirming that a
meet-and-confer had taken place. We see no basis for
finding an abuse of discretion in the district court’s reli-
ance on Local Rule 7-3 to deny the motion. In a number
of cases, judges of the Central District of California have
insisted on strict adherence to the rule and denied mo-
tions for violations. E.g., Moghaddam v. Liberty Life
Assurance Co. of Boston, No. SACV 14-00505 DDP
(DFMx), 2015 WL 5470338, at *2 (C.D. Cal. Sept. 17,
2015); J&J Sports Productions, Inc. v. Auila, No. 12-
SOWINSKI v. CALIFORNIA AIR RESOURCES BOARD 7
03817 WDK (FMOx), 2014 WL 12567784, at *1 (C.D. Cal.
Feb. 11, 2014). Dr. Sowinski points to no contrary deci-
sion of the Ninth Circuit, which, moreover, has recognized
district court’s “considerable latitude in managing the
parties’ motion practice and enforcing local rules that
place parameters on briefing.” Christian v. Mattel, Inc.,
286 F.3d 1118, 1129 (9th Cir. 2002).
The district court also did not abuse its discretion
when it dismissed Dr. Sowinski’s complaint with preju-
dice based on his failure to file a brief in opposition. In
Ghazali v. Moran, the Ninth Circuit affirmed a district
court’s dismissal of an action based on the plaintiff’s
failure to oppose the defendant’s motion to dismiss. 46
F.3d 52, 54 (9th Cir. 1995) (per curiam). Similarly, in a
non-precedential decision, this court observed that “under
the Local Rules of the U.S. District Court for the Central
District of California, as under many courts’ local rules, a
party who fails to oppose a motion may be deemed to
consent to the granting of the motion” and, on that basis,
held that a district court had “properly dismissed” an
amended complaint when the plaintiff “failed to file any
opposition” to a motion to dismiss. Roper v. Jo-Ann
Stores, Inc., 211 F. Appx. 950, 951 (Fed. Cir. 2007). Dr.
Sowinski does not identify any contrary precedent.
In any event, even as a general matter, the Ninth Cir-
cuit has stated that “[f]ailure to follow a district court’s
local rules is a proper ground for dismissal,” though the
district court must analyze the following 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
[on] their merits; and (5) the availability of less
drastic sanctions.
8 SOWINSKI v. CALIFORNIA AIR RESOURCES BOARD
Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779
F.2d 1421, 1423 (9th Cir. 1986) (internal quotation marks
omitted)); see Ferdik, 963 F.2d at 1260–61.
Here, the district court considered the enumerated
factors and found that the balance favored dismissal. The
court concluded that factor (1) “always favors dismissal.”
J.A. 3 (quoting Pagtalunan v. Galaza, 291 F.3d 639, 642
(9th Cir. 2002)). As for factor (2), the court reasoned that
its docket is better served by dismissing cases with idle
plaintiffs. Id. (citing Pagtalunan, 291 F.3d at 644 (Trott,
J., concurring); Edwards v. Marin Park, Inc., 356 F.3d
1058, 1063-66 (9th Cir. 2004) (noting that when a plaintiff
does nothing, “resources continue to be consumed by a
case sitting idly on the court’s docket.”)). Regarding factor
(3), the court determined that Dr. Sowinski had made no
attempt to rebut the “rebuttable presumption of prejudice
to the defendant . . . when a plaintiff unreasonably delays
prosecution of an action.” Id. (quoting Murphy v. Dep’t of
Children & Family Services, No. CV 15-05347-JLS (AJW),
2016 WL 183047, at *3 (C.D. Cal. Jan. 14, 2016)). Despite
determining that factors (4) and (5) weighed against
dismissal, the court ultimately concluded that the overall
balance favored dismissal, particularly because Local
Rule 7-12 gave the parties notice that “failure to respond
[] consents to the court granting a motion to dismiss
without considering the merits.” Id. (citing Newman v.
Lamont, No. CV 11-02379 PA (AJW), 2011 WL 5909837,
at *3 (C.D. Cal. Oct. 26, 2011)). Finally, the court rea-
soned that dismissal with prejudice was warranted in this
case, particularly because Dr. Sowinski stipulated “that
the Motions to Dismiss are potentially case dispositive,
but nevertheless conceded and reaffirmed that [he had]
failed to oppose” the motions. J.A. 3–4 (internal quotation
marks omitted) (citing Newman, 2011 WL 5909837, at *3
(dismissing an action with prejudice where the plaintiff
failed to oppose a motion to dismiss)).
SOWINSKI v. CALIFORNIA AIR RESOURCES BOARD 9
The court’s reasoning as to each factor, the overall
balancing of the factors, and the decision to dismiss with
prejudice were based on relevant case law and reveal no
clear error of judgment. For those reasons, we conclude
that the court did not abuse its discretion in dismissing
the case with prejudice. We see no basis for a contrary
conclusion in any of Dr. Sowinski’s arguments.
III
For the foregoing reasons, the judgment of the district
court is affirmed.
No costs.
AFFIRMED