Opinion
NO. CIV. S-10-356 FCD/DAD.
January 14, 2011
MEMORANDUM AND ORDER
This matter is before the court on defendants' motion to dismiss plaintiff Sergio Alunan's first amended complaint ("FAC") pursuant to Federal Rule of Civil Procedure 41(b). On October 19, 2010, the court issued a memorandum and order, granting defendants' motion to dismiss the FAC on the basis of the statute of limitations and a failure to exhaust administrative remedies. (Docket #19.) Plaintiff, however, was granted leave to file a second amended complaint ("SAC") establishing a factual basis for application of the doctrine of equitable tolling with respect to his Americans with Disabilities Act claims. Said complaint was due on or before November 8, 2010.
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 230(g).
To date, plaintiff has not filed a SAC, and he did not respond to the instant motion. As such, the court dismisses this case pursuant to Rule 41(b) for a failure to prosecute. See Edwards v. Marin Park Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (recognizing that although dismissals as sanctions for the failure to prosecute or comply with a court order are generally disfavored as drastic measures, such dismissals may be proper where leave to amend is given following a correctly granted Rule 12(b)(6) motion and the plaintiff fails to take any action whatsoever).
Rule 41(b) provides: "For failure of the plaintiff to prosecute or to comply with . . . any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) . . . operates as an adjudication on the merits."
Defendant's Rule 41(b) motion to dismiss is HEREBY GRANTED. The Clerk of the Court is directed to close this file.
IT IS SO ORDERED.
DATED: January 13, 2011