Estate of Jose Herrera, et al v. California Department of Corrections,et al

Filing 12

ORDER on Defendants' Request for Clarification re 11 and granting withdrawal of Defendants' Motion to Dismiss filed on 10/11/2016 re 6 signed by Magistrate Judge Sheila K. Oberto on 10/31/2016. Within 21-Days, Plaintiff to file either an opposition or a statement of non-opposition to Defendants' Motion to Dismiss filed 10/14/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ESTATE OF JOSE HERRERA, et al.,
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Plaintiffs,
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v.
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CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

Case No. 1:16-cv-01053-DAD-SKO (PC)
ORDER ON DEFENDANTS’ REQUEST FOR
CLARIFICATION and GRANTING
WITHDRAWAL OF DEFENDANTS’ MOTION TO
DISMISS FILED ON OCTOBER 11, 2016
(Docs. 6, 11)
TWENTY-ONE DAY DEADLINE

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Plaintiffs, the Estate of Jose Herrera, Jose A. Herrera, Martha Herrera, and Jose Herrera,
named individually and as the Successors in Interest of Jose E. Herrera, who was a state prisoner

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at the time of his death, filed this civil rights action pursuant to 42 U.S.C. ' 1983. (Doc. 1.) This
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action involves past conditions of confinement at Kern Valley State Prison California
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Correctional Institution in Tehachapi.
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On October 6, 2016, Defendants filed a motion to dismiss and scheduled it for hearing
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before the District Judge. (Doc. 6.) Although Jose Herrera was not incarcerated when this action
was filed, on October 12, 2016, the District Judge directed the Clerk of Court to amend the docket
in this matter to reflect the designation of this case as a prisoner case by adding the suffix “PC” to
the case number, ordered that all pending hearing dates be vacated, and referred the action to the
undersigned for further handling. (Doc. 7.) Defendants thereafter filed a duplicative motion to
dismiss and scheduled it for hearing before the undersigned, but did not withdraw their original

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motion to dismiss. (Doc. 8.)
On October 21, 2016, the Court issued an order vacating the hearing date on Defendants’

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second motion to dismiss and directed that the action proceed under Local Rule 230(l). (Doc.

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10.) On October 26, 2016, Defendants filed a request for clarification indicating their

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understanding that Local Rule 230(l) would not apply to this case since none of the Plaintiffs are

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incarcerated and are all represented by counsel. (Doc. 11.) Defendants indicated that, if this case

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is to proceed under Local Rule 230(l), they will withdraw the motion to dismiss filed on October

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11, 2016 (Doc. 6) and agree to proceed on the motion to dismiss filed on October 14, 2016 (Doc.

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8). (Id.)
District courts have broad discretion to manage the course of litigation and their calendars.

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Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012); see also U.S. v. Batiste, 868 F.2d

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1089, 1091 n.4 (9th Cir. 1989). Notwithstanding Plaintiffs un-incarcerated and represented

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status, the Court has exercised its discretion and determined that this case will be best managed

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by proceeding under Local Rule 230(l).
Accordingly, it is HEREBY ORDERED that:

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1.

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Local Rule 230(l) shall apply to this case;

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Defendants’ withdrawal of their motion to dismiss, filed on October 11, 2016,
(Doc. 6) is GRANTED;

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3.

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Within twenty-one (21) days of the date of service of this order, Plaintiffs shall file
either an opposition to Defendants’ motion to dismiss filed on October 14, 2016,

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or a statement of non-opposition and a first amended complaint; and

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4.

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If Plaintiffs file an opposition, Defendants shall file any their within seven (7)
days.

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IT IS SO ORDERED.
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Dated:

October 31, 2016

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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