Harvey v. City of South Lake Tahoe et al

Filing 103

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/6/2014. The 12/30/2013 99 Order to Show cause is DISCHARGED and no sanctions will be imposed. Hearing on defendants' 97 Motion to Dismiss is CONTINUED to 4/9/2014 at 10:00 AM in Courtro om 8 (EFB). Plaintiff shall file and Opposition or Statement of Non-Opposition no later than 3/26/2014. Defendants may file Reply, if any, on or before 4/2/2014. Clerk directed to serve plaintiff with copy of 11/27/2013 97 Motion to Dismiss. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL THOMAS HARVEY,

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No. 2:10-cv-1653-KJM-EFB PS

Plaintiff,
v.

ORDER

ANDREW EISSINGER, CHARLES
DUKE, SHANNON LANEY, and JAKE
HERMINGHAUS,

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Defendants.

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On November 27, 2013, defendants filed a motion to dismiss the fifth amended complaint

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for failure to state a claim.1 ECF No. 97. Defendants noticed the hearing on that motion for

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January 8, 2014. Id. Pursuant to this court’s local rules, plaintiff was required to file an

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opposition or a statement of non-opposition to the motion by December 26, 2013. See E.D. Cal.

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L.R. 230(c); Fed. R. Civ. P. 6(a).

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Plaintiff failed to timely file an opposition or a statement of non-opposition. Therefore,

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on December 30, 2013, plaintiff was ordered to show cause, in writing, no later than January 15,

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2014, why sanctions should not be imposed for failure to timely file an opposition or a statement

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of non-opposition to the pending motion. ECF No. 99. The order also continued the hearing on

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defendants’ motion to dismiss to January 29, 2014, and ordered plaintiff to file an opposition or

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This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to
28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21).
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statement of non-opposition to the pending motion no later than January 15, 2014. Id. Plaintiff

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failed to timely respond to the December 30 order. However, court records reflected that the

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Clerk of the Court failed to serve plaintiff with the December 30 order to show cause. Therefore,

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on January 17, 2014, the Clerk was directed to serve plaintiff with a copy of the December 30

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order. The January 17 order also continued the hearing on defendants’ motion to dismiss to

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February 26, 2014, and ordered plaintiff to file a response to the order to show cause and an

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opposition or statement of non-opposition to defendants’ motion to dismiss by February12, 2014.

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ECF No. 100.

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On January 27, 2014, plaintiff filed a response to the order to show cause, which is dated

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January 23, 2014. In his response, plaintiff explains that he never received a copy of defendants’

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motion to dismiss and therefore was not able file an appropriate response. ECF No. 102. Also on

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January 27, 2014, defendants filed a certificate of service, reflecting that they served plaintiff with

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their motion to dismiss on January 27, 2014. ECF No. 101. In light of the fact that defendants

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failed to timely serve plaintiff with their motion to dismiss, the order to show cause is discharged

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and no sanctions will be imposed. Further, the court will continue the hearing on defendants’

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motion to dismiss and provide plaintiff with additional time to prepare a response to the pending

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motion.

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Accordingly, it is hereby ORDERED that:

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1. The December 30, 2013 order to show cause is discharged. No sanctions will be

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imposed.
2. The hearing on defendants’ motion to dismiss (ECF No. 97) is continued to April 9,
2014 at 10:00 a.m. in Courtroom No. 8.
3. Plaintiff shall file an opposition to the motion, or a statement of non-opposition thereto,
no later than March 26, 2014.
4. Failure of plaintiff to file an opposition to the motion will be deemed a statement of

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non-opposition thereto, and may result in a recommendation that this action be dismissed for lack

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of prosecution and/or for failure to comply with court orders and this court’s Local Rules. See

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Fed. R. Civ. P. 41(b); E.D. Cal. L.R. 110.
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5. Defendants may file a reply to plaintiff’s opposition, if any, on or before April 2, 2014.

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6. The Clerk of the Court is directed to serve plaintiff with a copy of the November 27,

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2013, motion to dismiss.

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DATED: February 6, 2014.

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