Barroga v. Board of Administration Cal Public Employees' Retirement System

Filing 44

ORDER signed by Chief Judge Morrison C. England, Jr on 12/19/12 ORDERING Plaintiff's Motion to Judgment on the Pleadings 37 must be re-noticed before Judge Newman. Any notice of a hearing before Judge England is procedurally imp roper and will be vacated. By the same token, the hearing noticed by Plaintiff for December 27, 2012, 43 is VACATED. There will be no hearing on that date. Should Plaintiff wish to have his Motion for Judgment on the Pleadings heard, he must properly notice the motion before the Magistrate Judge assigned to the case, pursuant to the Eastern District of California's Local Rules as set forth above. (Matson, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LUCIO A. BARROGA,

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Plaintiff,

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No. 2:12-cv-01179-MCE-KJN

v.

MEMORANDUM AND ORDER

BOARD OF ADMINISTRATION CAL
PUBLIC EMPLOYEES’ RETIREMENT
SYSTEM,

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Defendant.

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On March 2, 2012, Plaintiff Lucio A. Barroga (“Plaintiff”) filed a Complaint against

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Defendant Board of Administration Cal Public Employees’ Retirement System. (ECF No.

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1.) On June 11, 2012, Plaintiff requested an entry of default. (ECF No. 6.) The Clerk of

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the Court entered a default on the same day, finding that Defendant had been served

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with process but had failed to appear, plead or answer Plaintiff’s Complaint. (ECF No.

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7.) Plaintiff then moved for default judgment (ECF No. 8), which Magistrate Judge

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Newman denied (ECF No. 9.) Judge Newman also ordered the entry of default vacated,

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as Plaintiff had failed to properly serve Defendant with the summons and complaint.

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(ECF No. 9.)

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On July 12, 2012, Plaintiff again moved for default judgment (ECF No. 11), which

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Magistrate Judge Newman again denied without prejudice (ECF No. 12). In its order

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denying default judgment, the Court noted that Plaintiff’s motion for default judgment did

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not cure the defects in service the Court raised in its prior order, and also observed the

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Plaintiff had not sought a clerk’s entry of default before filing the motion for default

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judgment. (ECF No. 12.)

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Plaintiff filed a “Response” to Judge Newman’s order on the Motion for Default

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Judgment. (ECF No. 13.) In this Response, Plaintiff states that Judge Newman has no

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jurisdiction over the case because the parties did not consent to the jurisdiction of a

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magistrate judge, as required by 28 U.S.C. 636(c)(1), and as such Judge Newman’s

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order is invalid. (Id.)

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On September 11, 2012, Defendant filed a Motion to Dismiss. (ECF No. 21.) On

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October 12, 2012, Plaintiff filed a Motion for Judgment on the Pleadings “to be heard

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concurrently with the Defendant’s Motion to Dismiss.” (ECF No. 28.) A hearing was

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held on the Motion to Dismiss on October 18, 2012. (ECF No. 31.) On October 26,

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2012, Judge Newman issued findings and recommendations recommending that

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Defendant’s Motion to Dismiss be granted in part, and that Plaintiff’s Motion for

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Judgment be denied as moot. (ECF No. 32.)

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On October 25, 2012, Plaintiff again filed a Motion for Judgment on the Pleadings,

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noticing the motion for November 8, 2012, before Judge England. (ECF No. 33.) The

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Court issued a minute order stating that pursuant to Local Rule 302(c), Plaintiff’s Motion

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for Judgment on the Pleadings (ECF No. 33) must be re-noticed according to Local Rule

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230(a) before the assigned Magistrate Judge. (ECF No. 35.) Accordingly, the Court

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vacated the November 8, 2012, hearing date. (Id.)

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On November 15, 2012, Plaintiff filed yet another Motion for Judgment on the

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Pleadings, again noticing the motion for hearing on November 29, 2012, before Judge

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England. (ECF No. 37.)

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The Court issued a minute order again stating that pursuant to Local Rule 302(c),

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Plaintiff’s Motion for Judgment on the Pleadings must be re-noticed according to Local

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Rule 230(a) before the assigned Magistrate Judge. (ECF No. 38.) The Court thus

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vacated the November 29, 2012, hearing date.

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By way of response, Plaintiff filed a request for a hearing date of December 6,

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2012, to have his Motion for Judgment on the Pleadings heard before Judge England.

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(ECF No. 40.) On December 5, 2012, the Court issued a minute order denying Plaintiff’s

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Renewed Request for a hearing on the Motion for Judgment on the Pleadings, pursuant

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to Local Rule 302(c). (ECF No. 41.) The Court again ordered that the Motion be re-

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noticed according to Local Rule 230(a) before the assigned Magistrate Judge. (Id.)

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On December 12, 2012, Plaintiff filed a Memorandum in Support of Motion for
Judgment, noticing a hearing for December 27, 2012, before Judge England.

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As stated in the Court’s previous minute orders, Local Rule 302(c)(21) provides

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that Magistrate Judges shall perform the duties in civil matters in “all actions in which all

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the plaintiffs or defendants are proceeding in propria persona, including dispositive and

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non-dispositive motions and matters.” Because Plaintiff represents himself, under Local

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Rule 302(c)(21) the Magistrate Judge—in this case, Magistrate Judge Newman—shall

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hear all dispositive and non-dispositive motions and matters. See E.D. Cal. Local R.

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302(c)(21).

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Local Rule 230(a) provides: “Each Judge or Magistrate Judge maintains an
individual motion calendar. Information as to the times and dates for each
motion calendar may be obtained from the Clerk or the courtroom deputy
clerk for the assigned Judge or Magistrate Judge.” Moreover, Local Rule
230(b) states, in relevant part, that: all motions shall be noticed on the
motion calendar of the assigned Judge or Magistrate Judge. The moving
party shall file a notice of motion, motion, accompanying briefs, affidavits, if
appropriate, and copies of all documentary evidence that the moving party
intends to submit in support of the motion. The matter shall be set for
hearing on the motion calendar for the Judge or Magistrate Judge to whom
the action has been assigned or before whom the motion is to be heard
....

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Accordingly, Plaintiff may not notice a motion before Judge England. Pursuant to Local

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Rule 302(c)(21), Magistrate Judge Newman is the Judge to hear all dispositive and non-

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dispositive motions and matters in Plaintiff’s case. Thus, in noticing a motion, Plaintiff

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must notice the motion before Judge Newman, as it is Judge Newman, and not Judge

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England, who will hear the motions in Plaintiff’s case.

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As such, Plaintiff’s Motion to Judgment on the Pleadings (ECF No. 37) must be

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re-noticed before Judge Newman. Any notice of a hearing before Judge England is

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procedurally improper and will be vacated. By the same token, the hearing noticed by

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Plaintiff for December 27, 2012, (ECF No. 43) is VACATED. There will be no hearing on

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that date. Should Plaintiff wish to have his Motion for Judgment on the Pleadings heard,

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he must properly notice the motion before the Magistrate Judge assigned to the case,

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pursuant to the Eastern District of California’s Local Rules as set forth above.

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IT IS SO ORDERED.

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Dated: December 19, 2012

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_______________________________________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT COURT

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DEAC_Signature-END:

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