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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 GRANTING DEFENDANT 

IMWALLE’S MOTION FOR 

ADMINISTRATIVE RELIEF; 

VACATING PRIOR ORDER DATED 

MAY 10, 2017; AND REINSTATING 

DEFENDANT IMWALLE’S MOTION 

TO DISMISS

[Re: ECF 33]

Plaintiff Ngoc Lam Che sues the owners and operators of a property located at 4848 San 

Felipe Road, San Jose, California, 95135, for violations of state and federal laws prohibiting 

discrimination on the basis of disability. Compl., ECF 1. Defendant San Jose/Evergreen 

Community College District Foundation filed an answer on March 1, 2017, and Defendant 

Imwalle Properties, Inc. filed a motion to dismiss for lack of subject matter jurisdiction on April 

28, 2017. Answer, ECF 16; Motion, ECF 22. On May 8, 2017, Plaintiff Che filed an application 

to compel Defendant Imwalle’s compliance with General Order 56 and for sanctions against 

Imwalle. Pl.’s Applic., ECF 25. General Order 56 provides for limited discovery and stays “[a]ll 

other discovery and proceedings” pending completion of a joint site inspection and mediation. 

General Order 56. Che asserted that language stay of “[a]ll other discovery and proceedings” 

encompasses motion practice and that Imwalle’s filing of its motion to dismiss therefore violated 

General Order 56. Pl.’s Applic., ECF 25. The Court agreed and struck Imwalle’s motion to 

dismiss, without prejudice, on the basis that it was not permitted under General Order 56. Order 

Striking Motion to Dismiss, ECF 32. The Court denied Che’s request for sanctions. Id.

On May 19, 2017, Imwalle filed an administrative motion seeking clarification of the 

Court’s Order Striking Motion to Dismiss. Def.’s Admin. Motion, ECF 33. Specifically, Imwalle 
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United States District Court

Northern District of California

requests clarification as to whether General Order 56 stays its obligation to respond to the 

complaint pending completion of the site inspection and mediation required under General Order 

56. Id. Imwalle states that Che has threatened to seek a Clerk’s entry of default if Imwalle does 

not file an answer to the complaint. Id. Imwalle argues that it is entitled to respond to the 

complaint by motion, and that because the Court struck its motion to dismiss as premature, the 

Court should either clarify that Imwalle’s obligation to respond to the complaint is stayed by 

General Order 56 or should enlarge Imwalle’s deadline to respond until such time as the motion 

properly may be filed. Che has not opposed Imwalle’s administrative motion and the time to file 

opposition has elapsed. See Civ. L.R. 7-11 (response to administrative motion due within four 

days).

Upon further review of General Order 56, the Court concludes that the language imposing 

a stay on “[a]ll other discovery and proceedings” does not clearly encompass the filing of an 

answer or motion in response to a complaint. At least one court in this district has concluded

expressly that the language stays only discovery proceedings. See Moralez v. Whole Foods 

Market, 897 F. Supp. 2d 987, 993 n.2 (N.D. Cal. 2012) (holding that the cited language “plainly 

refers to discovery issues, and does not bar a defendant from moving to dismiss on res judicata

grounds”). Accordingly, the Court VACATES its Order Striking Motion to Dismiss and 

REINSTATES Imwalle’s motion. 

Che’s application to compel Imwalle’s compliance with General Order 56 asserted that 

Che cannot respond to Imwalle’s motion prior to the site inspection. Che’s argument on that point 

is well-taken. Accordingly, the deadline for Che’s opposition to Imwalle’s motion to dismiss is 

extended until fourteen days after completion of the site inspection. Any reply shall be filed 

within seven days after the opposition is filed. The motion to dismiss will be taken under 

submission without oral argument unless the parties are advised otherwise by the Court.

IT IS SO ORDERED.

Dated: May 26, 2017

______________________________________

BETH LABSON FREEMAN

United States District Judge