United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ALBERTO ROCHA, Ph.D.,

Plaintiff(s),

 vs.

HILDA L. SOLIS, Secretary, Department of Labor,

Defendant(s). /

No.08-3049 MHP

ORDER GRANTING

MOTION FOR

SUMMARY

JUDGMENT AND

DISMISSING

ACTION

This action was filed on June 23, 2008. It is now noticed for hearing on a motion for

summary judgment for April 26, 2010. This hearing was scheduled by the court and the parties for

this date pursuant to a stipulation and order entered January 19, 2010. In accordance with the order

defendant was to file her motion on March 22, 2010 and plaintiff was to file his opposition on or

before April 5, 2010. Plaintiff did not file his opposition, such as it was, until April 13, 2010,

thirteen days before the hearing. This not only failed to comply with the stipulation and order, but

also with Civil Local Rule 7-3 which requires that it “be served and filed not less than 21 days

before the hearing date.” 

The April 13 filing was wholly inadequate as counsel for plaintiff should well know. There

was no memorandum or brief filed with the papers. The papers consisted of a declaration from the

plaintiff and an unsigned declaration from plaintiff’s purported attorney, although one cannot tell

from the declaration who the declarant is since no actual name is set forth in the declaration.

This is not the first instance of plaintiff’s counsel’s dereliction of duties. On April 10, 2009

this court issued an Order to Show Cause why the case should not be dismissed for counsel’s failure

to appear, reciting three occasions where counsel, Howard Moore, had failed to appear for his

client.

Case 3:08-cv-03049-MHP Document 65 Filed 04/15/10 Page 1 of 2
United States District Court

For the Northern District of California

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The docket reflects that there have been several stipulations continuing the motion for summary

judgment briefing schedule. The instant dereliction is the final straw. 

The unsigned declaration of the purported attorney is stricken because it is unsigned and

incomplete. Accompanying it is a document consisting of 102 pages, twelve of which are a 

declaration of the plaintiff and the remainder of which are various documents. Also filed on the

same date was a request for judicial notice with a twenty-plus page document attached. All of these

document are stricken as untimely. They are also of little use to the court without a memorandum or

brief. It is not the court’s responsibility to sift through the submissions and ascertain whether there

is sufficient evidence to defeat a motion for summary judgment; it is not the court’s responsibility to

make plaintiff’s arguments for him. There has been ample time for plaintiff’s counsel to prepare the

case he filed nearly two years ago. Plaintiff and his counsel have been on notice at least since the

case management conference on December 8, 2008, that defendant anticipated filing a motion for

summary judgment. A briefing schedule for the motion was set at a further case management

conference on April 27, 2009, a year ago. Thereafter, as noted above, there were several

continuances of the schedule. 

In view of the striking of the filings as untimely and inadequate, the motion is deemed

unopposed and submitted on the papers. In view of the failure to oppose and having reviewed the

submissions in support of the motion, the motion for summary judgment is GRANTED. Finally,

although the court is always wary of taking action that penalizes the party himself because of his

attorney’s dereliction, the plaintiff, as can be seen from the record and even the caption, is not

unschooled or lacking in capacity to monitor his own lawsuit. He has had ample notice from the

record in this case of the obligations of his counsel and himself. Therefore, in view of the

continuing deficiencies in this action, as noted above, this action is DISMISSED and judgment will

be entered accordingly.

IT IS SO ORDERED.

Date: April 15, 2010 

MARILYN HALL PATEL

United States District Court Judge

Case 3:08-cv-03049-MHP Document 65 Filed 04/15/10 Page 2 of 2