Adams v. Easley et al

Filing 20

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/25/2011 ORDERING defendant's 10 Motion to Dismiss hearing is continued to 9/7/2011 at 10:00 AM in Courtroom 24 (EFB); plaintiff's 17 Motion to Amend will also be heard on 9/7/2011 at 10:00 AM in Courtroom 24 (EFB); On or before 8/24/2011, defendants shall file an opposition or statement of non-opposition to plaintiff's Motion to Amend; Plaintiff may file a reply on or before 8/31/2011; defendant's may file a reply to plaintiff's opposition to 10 Motion to Dismiss on or before 8/31/2011; Plaintiff's 19 Motion to Appear Telephonically is DENIED as MOOT; Plaintiff's 16 Motion for Extension of time to serve some of the unserved defendants, is GR ANTED; plaintiff has until 11/2/2011 to serve remaining defendants and file a proof of such service; Status Conference is RESET for 12/21/2011 at 10:00 AM in Courtroom 24 (EFB); Parties shall file status reports on or before 12/7/2011. (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TYRONE L. ADAMS,
Plaintiff,

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No. CIV S-11-0913 JAM EFB PS

vs.

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CHARLES L. EASLEY, et al.,

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Defendants.
_________________________________/

ORDER

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This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to

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Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On June 22,

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2011, several of the defendants in this action filed a motion to dismiss plaintiff’s first amended

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complaint and noticed the motion to be heard on August 3, 2011. Dckt. No. 10. On July 21,

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2011, plaintiff filed an opposition to defendants’ motion to dismiss, Dckt. No. 18; a motion to

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amend his amended complaint, Dckt. No. 17; and a motion to appear telephonically at the

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August 3 hearing, Dckt. No. 19.

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Local Rule 230(e) provides that related or counter-motions “shall be served and filed in

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the manner and on the date prescribed for the filing of opposition” and assumes that, unless the

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court finds that a continuance is warranted, related motions will be heard on the same day as the

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original motion. E.D. Cal. L.R. 230(e) (“Any counter-motion or other motion that a party may
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desire to make that is related to the general subject matter of the original motion shall be served

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and filed in the manner and on the date prescribed for the filing of opposition. If a

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counter-motion or other related motion is filed, the Court may continue the hearing on the

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original and all related motions so as to give all parties reasonable opportunity to serve and file

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oppositions and replies to all pending motions.”). Because plaintiff’s motion to amend his

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amended complaint, Dckt. No. 17, relates to the motion to dismiss that is currently scheduled for

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hearing on August 3, Dckt. No. 10, the hearing on that motion to dismiss will be continued in

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order to give defendants an opportunity to respond to the motion to amend. Accordingly,

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plaintiff’s motion to appear telephonically at the August 3 hearing, Dckt. No. 19, will be denied

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as moot.
Also on July 21, 2011, plaintiff filed a motion for an extension of time to serve some of

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the unserved defendants. Dckt. No. 16. Rule 4(m) provides that “[i]f service of the summons

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and complaint is not made upon a defendant within 120 days after the filing of the complaint, the

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court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action

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without prejudice as to that defendant or direct that service be effected within a specified time;

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provided that if the plaintiff shows good cause for the failure, the court shall extend the time for

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service for an appropriate period.” For the reasons provided in plaintiff’s motion for an

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extension of time to serve, plaintiff will be given a limited extension of time to serve any

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remaining unserved defendants.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The hearing on defendants’ motion to dismiss, Dckt. No. 10, is continued to

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September 7, 2011 at 10:00 a.m. in Courtroom No. 24.
2. Plaintiff’s motion to amend, Dckt. No. 17, will also be heard on September 7, 2011 at
10:00 a.m. in Courtroom No. 24.
3. On or before August 24, 2011, defendants shall file an opposition or statement of nonopposition to plaintiff’s motion to amend.
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4. On or before August 31, 2011, plaintiff may file a reply to any opposition filed by
defendants.
5. On or before August 31, 2011, defendants may file a reply to plaintiff’s opposition to
defendants’ motion to dismiss.
6. Plaintiff’s motion to appear telephonically at the August 3 hearing, Dckt. No. 19, is
denied as moot.

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7. Plaintiff’s motion for an extension of time to serve some of the unserved defendants,

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Dckt. No. 16, is granted. Plaintiff has until November 2, 2011 to serve any remaining unserved

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defendants and file a proof of such service with the court.

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8. The status conference currently scheduled for August 17, 2011, is rescheduled for
December 21, 2011 at 10:00 a.m. in Courtroom No. 24.
9. On or before December 7, 2011, the parties shall file status reports addressing the
matters referenced in the court’s April 5, 2011 order.
SO ORDERED.
Dated: July 25, 2011.

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