Johnson v. Mitchell et al

Filing 218

ORDER signed by Magistrate Judge Gregory G. Hollows on 7/31/2012 ORDERING that plaintiff's unauthorized reply brief and supporting documentation (dkt. nos. 216 , 217 ) are STRICKEN. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHEPARD JOHNSON,

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Plaintiff,

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No. 2:10-cv-1968 GEB GGH PS

vs.
CHESTER MITCHELL, et al.,
ORDER

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Defendants.
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/

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On May 4, 2012, the court, based on information in prior court filings suggesting

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that defendant Ford Hermanson may have been domiciled in Panama at the time he was joined as

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a defendant in this action on October 28, 2010, sua sponte raised the issue of whether dismissal

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of defendant Ford Hermanson pursuant to Fed. R. Civ. P. 21 may be necessary to cure potential

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defects in federal subject matter jurisdiction. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,

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230-31 (1990) (“The federal courts are under an independent obligation to examine their own

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jurisdiction....”); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828-29 (1989) (holding

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that United States citizens domiciled in a foreign country cannot be parties to a diversity action in

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federal court, because they destroy complete diversity).

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The court ordered plaintiff, within 21 days of the date of service of that order, to

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file either (a) a brief, limited to 15 pages, along with a declaration relating any facts and attaching

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any evidence plaintiff had that defendant Ford Hermanson was domiciled in a U.S. state other

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than California as of October 28, 2010, or (b) a request for dismissal of defendant Ford

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Hermanson from the action. In turn, in the event plaintiff elected to brief the issue of defendant

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Ford Hermanson’s domicile, defendant was permitted to file a responsive brief, limited to 15

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pages, along with a declaration relating any facts and attaching any evidence defendant Ford

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Hermanson had that he was domiciled outside of the United States as of October 28, 2010. The

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court order further provided that the matter would then be submitted on the record without oral

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argument with a written order and/or findings and recommendations to follow. (See Dkt. No.

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197 at 15.)

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On May 25, 2012, plaintiff filed his brief and supporting documentation in

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response to the court’s order, and on June 11, 2012, defendant Ford Hermanson filed his

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responsive brief and supporting documentation. (Dkt. Nos. 202, 202-1, 206.) Subsequently, on

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June 19, 2012, plaintiff filed a request for an oral hearing on the matter. (Dkt. No. 209.) After

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reviewing the parties’ briefs and supporting documents, the court agreed that a hearing and oral

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argument would be beneficial in resolving the matter, and accordingly set a hearing for August 2,

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2012 at 10:00 a.m. (Dkt. No. 210.) Nothing in that order granted either party permission to file

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further briefing.

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Nevertheless, on Sunday July 29, 2012, plaintiff filed a further unauthorized

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“reply brief” with numerous exhibits and supporting documentation. (Dkt. Nos. 216, 217.) Not

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only has the court not granted plaintiff permission to file supplemental briefing, but defendant

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has had little, if any, opportunity to respond in writing to plaintiff’s unsolicited brief filed four

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days prior to the hearing. Thus, defendant will be compelled to present any further rebuttal

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evidence at the hearing. These supplemental, unauthorized rounds of briefing with submission of

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further evidence also impose additional and unwarranted burden on a court facing limited judicial
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resources.
Although the court liberally construes the pleadings of pro se litigants, they are

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required to adhere to the rules of procedure, including the Federal Rules of Civil Procedure and

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the court’s Local Rules, as well as court orders. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.

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1995). Failure to comply with the Local Rules or with any order of the court “may be grounds

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for imposition . . . of any and all sanctions authorized by statute or Rule or within the inherent

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power of the Court.” E.D. Cal. L.R. 110; see also E.D. Cal. L.R. 183 (requiring compliance with

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the Local and Federal Rules by pro se litigants and providing that failure to comply may be

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grounds for dismissal, judgment by default, or any other appropriate sanction). Additionally, the

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court notes that plaintiff was previously cautioned regarding excessive and unauthorized filings.

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(Dkt. Nos. 169, 171.)

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In light of the above, the court will strike plaintiff’s unauthorized “reply brief” and

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supporting documentation. The parties are hereby put on notice that oral argument at the hearing

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shall be limited to the briefing and supporting documentation previously submitted in compliance

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with the court’s orders.

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For the reasons outlined above, IT IS HEREBY ORDERED that plaintiff’s

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unauthorized reply brief and supporting documentation (dkt. nos. 216, 217) are STRICKEN.

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DATED: July 31, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH/wvr
Johnson.1968.strike.wpd

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