Barbour v. United States of America

Filing 31

ORDER GRANTING 29 Plaintiff's Motion for Leave to File Response to Defendant's Objections to Findings and Recommendations signed by Magistrate Judge Barbara A. McAuliffe on 7/28/2020. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

SCOTT BARBOUR,

12
13
14
15

Plaintiff,
v.

Case No. 1:18-cv-00246-NONE-BAM (PC)
ORDER GRANTING PLAINTIFF’S MOTION
FOR LEAVE TO FILE RESPONSE TO
DEFENDANT’S OBJECTIONS TO
FINDINGS AND RECOMMENDATIONS

UNITED STATES OF AMERICA,
(ECF No. 29)
Defendant.

16
17

Plaintiff Scott Barbour (“Plaintiff”) is a federal prisoner proceeding pro se and in forma

18

pauperis in this civil rights action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b).

19

On August 21, 2019, Defendant filed a motion to dismiss the first amended complaint for

20

lack of subject matter jurisdiction. (ECF No. 18.) Plaintiff filed his opposition on September 18,

21

2019, (ECF No. 20), Defendant filed a reply on September 25, 2019, (ECF No. 21), and Plaintiff

22

filed a sur-reply on October 7, 2019, (ECF No. 24). Plaintiff also filed a motion for an order

23

opening discovery on September 18, 2019, (ECF No. 19), which Defendant opposed on

24

September 25, 2019, (ECF No. 22).

25

On July 1, 2020, the undersigned denied Plaintiff’s motion to open discovery and issued

26

findings and recommendations that Defendant’s motion to dismiss be granted in part and denied

27

in part. (ECF No. 26.) Defendant filed objections on July 15, 2020, (ECF No. 27), and Plaintiff

28

filed objections on July 21, 2020, (ECF No. 28).
1

1

On July 27, 2020, Plaintiff filed a motion for leave to file a response to Defendant’s

2

objections to the findings and recommendations, together with a proposed response. (ECF Nos.

3

29, 30.) In his motion, Plaintiff argues that he should be permitted to file a response to

4

Defendant’s objections because the objections contained factual and legal errors and because

5

Defendant presented a declaration from Ray Garcia that Plaintiff had no prior opportunity to

6

respond to. (ECF No. 29.) Though Defendant has not had an opportunity to file a response, the

7

Court finds a response unnecessary. The motion is deemed submitted. Local Rule 230(l).

8
9

Plaintiff’s motion is granted. A party may respond to another party’s objections to a
magistrate judge’s findings and recommendations within 14 days after being served with a copy.

10

Fed. R. Civ. P. 72(b)(2). As such, Plaintiff’s response to Defendant’s objections is both

11

appropriate and timely filed. The Court notes that Defendant’s response to Plaintiff’s objections,

12

if any, is similarly due within 14 days after they were filed.

13
14

Accordingly, Plaintiff’s motion for leave to file a response to Defendant’s objections to
the July 1, 2020 findings and recommendations, (ECF No. 29), is HEREBY GRANTED.

15
16
17
18

IT IS SO ORDERED.
Dated:

/s/ Barbara

July 28, 2020

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28
2