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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

NGOC LAM CHE,

Plaintiff,

v.

SAN JOSE/EVERGREEN COMMUNITY 

COLLEGE DISTRICT FOUNDATION, et 

al.,

Defendants.

Case No. 17-cv-00381-BLF 

ORDER STRIKING MOTION TO 

DISMISS FOR LACK OF 

JURISDICTION; REQUIRING 

COMPLIANCE WITH GENERAL 

ORDER 56; DENYING PLAINTIFF'S 

MOTION FOR SANCTIONS; AND 

DENYING DEFENDANTS’ MOTION 

FOR ADMINISTRATIVE RELIEF FOR 

EXTENSION RE: GENERAL ORDER 56

[Re: ECF 22, 25, 28]

Presently before the Court is Plaintiff Ngoc Lam Che’s ex parte application to compel 

Defendant Imwalle Properties, Inc. (“Imwalle”)’s compliance with the Court’s General Order No. 

56 and motion for sanctions, Mot., ECF 25; Imwalle’s opposition thereto, Opp’n, ECF 27; and 

Defendants’ administrative motion for administrative relief for an extension of the deadline set in 

General Order 56, Admin. Mot., ECF 28. After reviewing the papers, the Court HEREBY 

ORDERS:

1. Pursuant to General Order No. 56(2), all discovery and proceedings other than 

those enumerated therein are stayed until the parties complete the mediation to be conducted by 

the ADR Program. “Any party who wishes to be relieved of any requirement of this order . . . 

may file a Motion for Administrative Relief pursuant to Civil Local Rule 7-11.” Gen. Order. 

56(9). Here, Imwalle filed its motion to dismiss before completing mediation, yet did not ask the 

Court for relief from the stay imposed by General Order No. 56. Accordingly, Defendant’s 

motion is improper, and the Court thus STRIKES Defendant’s motion to dismiss WITHOUT 

PREJUDICE. Imwalle may resubmit its motion after completing mediation or after obtaining 

leave of the Court. The Court notes that it is disinclined to grant Imwalle leave to file its motion 
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United States District Court

Northern District of California

before the parties have had an opportunity to conduct the joint site inspection required by General 

Order No. 56. The Court briefly reviewed the substance of Defendant’s motion and finds it more 

properly couched as a motion for summary judgment, as it contests the merits as opposed to the 

pleadings. Cf. Johnson v. SSR Grp., Inc., No. 15-cv-5094, 2016 WL 3669994, at *4 (N.D. Cal. 

July 11, 2016) (denying defendant’s motion to dismiss because “the intertwined nature of the 

jurisdictional and substantive issues and the limited factual record here do not support deciding the 

ADA compliance issue before the parties have conducted appropriate discovery”). 

2. In order to promote the “just, speedy, and inexpensive determination” of this 

action, Fed. R. Civ. P. 1, and the goals of General Order No. 56, the Court ORDERS the parties to

complete the joint site inspection on or before July 12, 2017, pursuant to the prior stipulation 

agreed upon by the parties, and abide by the other deadlines enumerated in General Order No. 56. 

See ECF 24, ECF 5 (initial case schedule).

3. The Court DENIES Plaintiff’s motion for sanctions. To the extent Plaintiff 

incurred attorney’s fees in filing her motion or otherwise, the proper recourse is to seek attorney’s 

fees if she is ultimately successful on her claim.

4. Having stricken Defendant’s motion to dismiss, the Court DENIES Defendants’ 

motion for administrative relief to extend the deadline within which to comply with General Order 

No. 56. 

IT IS SO ORDERED.

Dated: May 10, 2017

______________________________________

BETH LABSON FREEMAN

United States District Judge