Buck v. Cemex Construction Materials Pacific LLC et al

Filing 19

ORDER signed by District Judge Lawrence J. O'Neill on 6/19/2013 disregarding 17 , 18 Opposition Papers.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TRISHA BUCK,

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CASE NO. CV F 13-0701 LJO GSA
Plaintiff,

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vs.

ORDER TO
PAPERS
(Doc. 18)

DISREGARD

OPPOSITION

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CEMEX, INC., et al.,
Defendants.
______________________________/

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On May 20, 2013, defendants filed their F.R.Civ.P. 12 motion to dismiss (doc. 8)

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plaintiff’s original complaint and set a June 25, 2013 hearing. On June 13, 2013, plaintiff filed

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her motion to remand (doc. 13) to challenge this Court's jurisdiction. This Court's June 14,

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2013 order ("June 14 order") (doc. 16) explained that "[t]his Court does not rule on motions to

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dismiss until its jurisdiction and remand issues are settled." The June 14 order vacated the June

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25, 2013 hearing, termed defendant's motion to dismiss, and ordered defendants, no later than

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20 days after issuance of a remand order, to file and serve papers to respond to plaintiff's

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complaint, unless this action is remanded to state court. The June 14 order informed the parties

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that this Court would not address a motion to dismiss until remand was resolved and that if this

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case is not remanded, defendants may seek dismissal anew by filing "a renewed motion to

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dismiss."

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Despite the June 14 order's clarity, plaintiff inexplicably filed papers (docs. 17, 18) to

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oppose the termed motion to dismiss to burden the record and this Court. Judges in the Eastern

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District of California carry the heaviest caseload in the nation, and this Court is unable to devote
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inordinate time and resources to individual cases and matters. As such, this Court will not

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devote time or resources to a motion to dismiss which, as plaintiff acknowledges, will be

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rendered moot if this action is remanded.

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determination of remand would jeopardize Judge O’Neill’s case management and would

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necessitate devotion of inordinate time and resources to this case at the expense of other actions

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and litigants.

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Addressing the motion to dismiss prior to

The parties and this case will be best accommodated if the parties consent to the conduct

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of all further proceedings by one of the Court’s U.S. Magistrate Judges.

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Judges' availability is far more realistic and accommodating to parties than that of Judge

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O’Neill, who must prioritize criminal and older civil cases over more recently filed civil cases.

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If the parties consent to Magistrate Judge jurisdiction, the reassigned magistrate judge can

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devote more available resources to accommodate this action and the parties.

The Magistrate

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Moreover, civil trials set before Judge O'Neill trail until he becomes available and are

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subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset

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to a later date if Judge O'Neill is unavailable on the original date set for trial. If a trial trails, it

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may proceed with little advance notice, and the parties and counsel may be expected to proceed

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to trial with less than 24 hours notice. Also, this Court's Fresno Division randomly and without

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advance notice reassigns civil actions to U.S. District Judges throughout the nation to serve as

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visiting judges. In the absence of Magistrate Judge consent, this action is subject to

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reassignment to a U.S. District Judge from outside the Eastern District of California. Case

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management difficulties, including briefing schedules, trial setting and interruption, are avoided

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if the parties consent to conduct of proceedings by a Magistrate Judge.

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The parties are required to consider, and if necessary, to reconsider consent to one of the

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Court’s Magistrate Judges. A Magistrate Judge consent form is available on this Court’s

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website. The parties and counsel are encouraged to contact United States Senators Diane

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Feinstein and Barbara Boxer to address this Court’s inability to accommodate the parties and

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this case. For further information regarding handling of this case, the parties may contact staff

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attorney Gary Green at [phone] or email him at [e-mail].
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On the basis of good cause, this Court:

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1. REGARDS plaintiff's opposition papers (17, 18) to the termed motion to dismiss and
will not review them;

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2. REITERATES that the June 14 order remains in effect and that defendants may file

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and serve a renewed motion to dismiss if this action is not remanded; and

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3. WILL TAKE no further action on the termed motion to dismiss (doc. 8); and

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4. ORDERS the parties not to appear in this Court on June 25, 2013 or July 2, 2013 for
a motion to dismiss hearing.

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IT IS SO ORDERED.

/s/ Lawrence J. O’Neill

June 19, 2013

Dated:

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

66h44d

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