1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENDELL LANG, Case No.: 3:23-cv-02260-RBM-DEB

12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS

14 UNITED STATES OF AMERICA INCLUDING PHILIP A. DOYLE, [Doc. 7] 15 attorney in his official capacity, 16 Defendants. 17 18 19 On August 26, 2024, Defendants United States of America and Philip A. Doyle 20 (collectively, “Defendants”) filed a Motion to Dismiss pro se Plaintiff Kendell Lang’s 21 Complaint.1 (Doc. 7.) Plaintiff has not filed an opposition to the Motion to Dismiss. For 22 the reasons set forth below, the Motion to Dismiss is GRANTED and this case is 23 DISMISSED WITHOUT PREJUDICE. 24 /// 25 /// 26 27 1 Plaintiff initially filed an Application to Proceed in District Court Without Prepaying Fees 28 1 I. BACKGROUND 2 Plaintiff’s claims appear to be based on Plaintiff being unable to renew his passport 3 because he has been certified by the Internal Revenue Service (“IRS”) as having a seriously 4 delinquent tax debt. (Doc. 1 at 1–2, 4.2) He characterizes Defendants’ “refusal to allow 5 Plaintiff to renew his U.S. passport” as a “violation of [his] Constitutional Rights, … which 6 has caused damages arising out of age discrimination, cruel and unusual punishment, 7 indentured servitude, impossibility of performance, [and] frustration of performance.” (Id. 8 at 2.) Plaintiff alleges he has lost four jobs and other opportunities because he has been 9 unable to renew his passport. (Id.) 10 Based on the allegations of the Complaint (Doc. 1) and the documents that Plaintiff 11 attaches to his Complaint (Docs. 1-1–1-2), it appears Plaintiff owes a significant tax debt 12 to the United States (see Doc. 1 at 2, 5; Doc. 1-1 at 15, Doc. 1-2 at 17). He has paid some 13 of the debt, but the amount he still owes is significant, and he failed to make a $150,000 14 payment he agreed to pay to settle his debt. (See Doc. 1 at 5–6; Doc. 1-1 at 16.) Plaintiff 15 alleges he has been unable to renew his passport because Defendants certified his tax debt 16 as seriously delinquent without giving him proper notice and his inability to renew his 17 passport has made it impossible to obtain income to pay the settlement amount. (Doc. 1 at 18 1–8.) 19 As to the $150,000 settlement, Plaintiff alleges he reached an agreement with the 20 United States to make a $150,000 payment on his tax debt, but he was unable to make that 21 payment because he could not close an investment deal that required he travel to Italy. 22 (Doc. 1 at 5–6; Doc. 1-1 at 15–16.) Plaintiff alleges “[t]his loss of investment was a direct 23 result of the Defendant[s’] cruel and unusual punishment and prosecutorial vindictiveness 24 of restricting the issuance of Plaintiff’s passport.” (Doc. 1 at 6.) 25 26 27 28 1 Plaintiff’s Complaint does not explain why he can only earn income through 2 employment that requires international travel. Instead, Plaintiff argues the non-renewal of 3 his passport based on the certification of his tax debt has resulted in “impossibility of 4 performance.” (Doc. 1 at 2–3, 17–18.) Essentially, he alleges that the only way he can 5 pay his debt is to obtain his passport. (See Doc. 1 at 3, 7; Doc 1-1 at 16; Doc. 1-2 at 4.) 6 He asserts that, in addition to losing out on the investment opportunity in Italy, he has also 7 not been able to secure other employment opportunities because the positions he seeks in 8 vertical farming require he have a valid passport. (Doc. 1 at 5–9; Doc. 1-2 at 4 (email from 9 Plaintiff referencing vertical farming industry and positions he needs a passport to obtain).) 10 Plaintiff identifies four “counts:” (1) Violation of the First Amendment and Due 11 Process Clause of the Fifth Amendment (Compl. at 8–9); (2) Violation of the Thirteenth 12 Amendment’s Prohibition Against Involuntary Servitude (id. at 9-10); (3) Violation of the 13 Age Discrimination Act (id. at 10); and (4) Punitive Damages (id. at 10–12). The 14 Complaint then includes a section titled “Damages and Immunity Defense” that appears to 15 assert a Bivens claim and address immunity defenses for a federal employee, government 16 attorney Philip Doyle. (Doc. 1 at 12–16.) The Complaint also seeks punitive damages for 17 Defendants’ “refusal to renew [his] passport knowing full well that this was the only way 18 Plaintiff could pay back taxes in any amount under any agreement.” (Doc. 1 at 10.) 19 II. DISCUSSION 20 The Court grants Defendants’ Motion to Dismiss (Doc. 7) based on Plaintiff’s lack 21 of opposition. The United States filed its Motion to Dismiss on August 26, 2024. (Doc. 22 7.) The Motion was served on Plaintiff by U.S. Mail and email. (Id. at 31.) The Motion 23 includes an October 7, 2024 hearing date. (Id. at 1.) 24 Pursuant to Civil Local Rule 7.1.e.2 and the undersigned’s Civil Chambers Rules, 25 Section III, Plaintiff’s opposition or statement of non-opposition was due no later than 26 September 23, 2024. CivLR 7.1.e.2 (“each party opposing a motion … must file that 27 opposition or statement of non-opposition … not later than fourteen (14) calendar days 28 prior to the noticed hearing.”) (emphasis removed); Ruth Bermudez Montenegro, U.S. 1 District Judge, Civil Chambers Rule III.B (hereinafter, “Chambers Rules”) (“Opposition 2 … briefs are due based on the noticed hearing date.”) (citing CivLR 7.1.e). 3 Plaintiff has not filed an opposition or statement of non-opposition. Plaintiff’s lack 4 of opposition constitutes Plaintiff’s consent to granting the Motion. CivLR 7.1.f.3.c); 5 Chambers Rules, Section III.C. The Civil Local Rules indicate that “[i]f an opposing party 6 fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may 7 constitute a consent to the granting of a motion … .” Id. Similarly, Chambers Rules, 8 Section III.C explicitly provides that “[a]n opposing party’s failure to file a memorandum 9 of points and authorities in opposition to any motion will be construed as consent to the 10 granting of the motion … .” 11 The Ninth Circuit has held that a district court may properly grant a motion to 12 dismiss as an unopposed motion pursuant to a local rule that permits, but does not require, 13 the granting of a motion for failure to respond. Ghazail v. Moran,

(9th Cir. 14 1995) (affirming dismissal based on the failure to file an opposition pursuant to the local 15 rules) (citing United States v. Warren,

(9th Cir. 1979)); see also Marcus 16 v. ABC Signature Studios, Inc.,

, 1063 (C.D. Cal. 2017) (granting 17 “Defendants’ Motion without reaching the merits, simply based on Plaintiff’s failure to 18 oppose the Motion.”). 19 “Before dismissing the action, the district court is required to weigh several factors: 20 ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 21 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 22 [the] disposition of cases on their merits; and (5) the availability of less drastic sanctions.’” 23 Ghazail,

(citing Henderson v. Duncan,

(9th Cir. 1986)). 24 Here, the Court finds three of the five factors weigh strongly in favor of dismissal. 25 Because Plaintiff did not respond to the Motion to Dismiss by the September 23, 26 2024 deadline and has not responded in the two months since that deadline passed, the 27 Court finds the interest in expeditious resolution of the litigation and the Court’s need to 28 manage its docket weigh in favor of dismissal. Yourish v. Cal. Amplifier,

, 1 990 (9th Cir. 1999) (“[T]he public’s interest in expeditious resolution of litigation always 2 favors dismissal.”); Pagtalunan v. Galaza,

(9th Cir. 2002) (“It is 3 incumbent upon the Court to manage its docket without being subject to routine 4 noncompliance of litigants.”). Additionally, the Court notes that, while Plaintiff is 5 pursuing this action without counsel, pro se litigants are still bound by the applicable rules. 6 Ghazail,

(“Although we construe pleadings liberally in their favor, pro se 7 litigants are bound by the rules of procedure.”); see also Castillo v. Select Portfolio 8 Servicing, Inc., No. 18CV1591-AJB-BLM,

, at *2 (S.D. Cal. Jan. 10, 9 2019) (citations omitted) (noting the same). 10 The risk of prejudice to Defendants also weighs in favor of dismissal. See In re 11 Phenylpropanolamine (PPA) Prods. Liab. Litig.,

(9th Cir. 2006) 12 (“[T]he law presumes that unreasonable delay is prejudicial” and “[a] defendant suffers 13 prejudice if the plaintiff’s actions impair the defendant’s ability to go to trial or threaten to 14 interfere with the rightful decision of the case.”) (citations omitted). Plaintiff’s failure to 15 respond to the Motion to Dismiss is delaying Defendants’ ability to resolve the case against 16 it. Plaintiff should not be permitted to ignore the Motion to Dismiss and its persuasive 17 arguments for dismissal. This would be prejudicial to Defendants because they would be 18 expending time and effort to move the case to resolution while Plaintiff only delays the 19 case by not responding. 20 The fourth factor weighs minimally against dismissal. Dismissal based on lack of 21 opposition would generally weigh against dismissal. Hernandez v. City of El Monte, 138

, 399 (9th Cir. 1998) (“The public policy favoring disposition of cases on their 23 merits counsels strongly against dismissal.”). However, Plaintiff is impeding a disposition 24 on the merits by not filing an opposition or statement of non-opposition to the Motion to 25 Dismiss as required by the Civil Local Rules of this Court and the undersigned’s Chambers 26 Rules. Accordingly, this factor weighs only minimally against dismissal. In re 27 Phenylpropanolamine,

(“this factor lends little support to a party whose 28 | ||responsibility it is to move a case toward disposition on the merits but whose conduct 2 || impedes progress in that direction.’’) 3 Similarly, the availability of less drastic sanctions, the fifth factor, also weighs only 4 || minimally against dismissal. The Court is not dismissing the case as a sanction. The Court 5 ||is considering the lack of opposition a waiver and granting an unopposed motion pursuant 6 ||to the Civil Local Rules. To the extent dismissal under these circumstances could be 7 || considered a sanction, the Court recognizes there are other sanctions available. However, 8 || when Plaintiff has not responded to Defendants’ extensive and detailed Motion to Dismiss 9 || that very persuasively argues none of Plaintiff's claims can proceed, the Court is persuaded 10 || the dismissal is the more appropriate course.° 11 Given three of the five factors strongly favor dismissal and the other two factors 12 || weigh minimally against dismissal, the Court GRANTS the Motion to Dismiss based on 13 || lack of opposition. See Ferdik v. Bonzelet,

(9th Cir. 1992) (noting 14 || dismissal would be affirmed even if the fourth and fifth factors weighed against dismissal). 15 Ht. CONCLUSION 16 The Motion to Dismiss (Doc. 7) is GRANTED, and this action is DISMISSED 17 || WITHOUT PREJUDICE. The Clerk shall close the case. 18 IT IS SO ORDERED. 19 Dated: December 17, 2024 Fe Le ; ? L 20 HON. RUTH BERMUDEZ MONTENEGRO 21 UNITED STATES DISTRICT JUDGE 22 23

25 26 > While the Court need not reach the merits of the Motion to Dismiss because Plaintiff has not opposed it, Plaintiff does not appear to state any plausible claims in the Complaint. 27 || Ashcroft v. Iqbal,

(2009) (“To survive a motion to dismiss, a complaint 28 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that 1s plausible on its face.’”) (quoting Bell Atl. Corp. v. Twombly,

(2007)).