Espy v. Independence Blue Cross, 081715 FED9, 13-56295

Docket Nº:13-56295
Party Name:RHONDA ESPY, Plaintiff - Appellant, v. INDEPENDENCE BLUE CROSS, Defendant-Appellee.
Judge Panel:Before: REINHARDT and CLIFTON, Circuit Judges and DU, District Judge.
Case Date:August 17, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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RHONDA ESPY, Plaintiff - Appellant,

v.

INDEPENDENCE BLUE CROSS, Defendant-Appellee.

No. 13-56295

United States Court of Appeals, Ninth Circuit

August 17, 2015

NOT FOR PUBLICATION

Submitted July 10, 2015 [**] Pasadena, California

Appeal from the United States District Court for the Southern District of California, No. 3:12-cv-00952-LAB-WMC Larry A. Burns, District Judge, Presiding

Before: REINHARDT and CLIFTON, Circuit Judges and DU, [***] District Judge.

MEMORANDUM [*]

Plaintiff Rhonda Espy appeals the dismissal with prejudice of her action against Defendant Independence Blue Cross. The district court dismissed the case based on her failure to file a memo in opposition to Defendant's motion to dismiss, treating that failure as consent to the granting of the motion, pursuant to Southern District of California Civil Local Rule 7.1(f)(3)(C). We vacate the dismissal and remand for further proceedings.

Pro se litigants are required to follow rules, including local rules. It is established under our precedents, however, that dismissal of an action cannot be based solely on a plaintiff's failure to file an opposition memo. When a district court considers dismissal of a case pursuant to a rule like Civil Local Rule 7.1(f)(3)(c), it is required to weigh: "(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." Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). If the district court did not consider these factors explicitly, as it did not here, we may review the record ourselves to determine whether the district court abused its discretion in dismissing the action. Ghazali, 46 F.3d at 53–54 (citing Henderson, 779 F.2d at 1424).

The district court did advise Espy specifically of Civil Local Rule 7.1(f)(3)(C)'s requirement to file a timely opposition to a motion to dismiss in an order entered eleven months earlier, on July 6, 2012. That fact weighs in favor of the dismissal. The balance of the factors appears to us to point in the other direction, however. Espy met other deadlines and had not shown herself to be prone to delay. Nothing in the record...

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