Buenrostro v. Buenrostro et al

Filing 12

ORDER signed by Magistrate Judge Kendall J. Newman on 4/14/2015. Plaintiff shall file, no later than 5/5/2015, an Opposition or Statement of Non-Opposition to pending 10 Motion to Dismiss. Defendants shall file any Reply to plaintiff's Opposit ion no later than 5/19/2015. The 6/4/2015 Status Conference is VACATED. All formal Discovery is STAYED pending resolution of 10 Motion to Dismiss for lack subject matter jurisdiction. Plaintiff's 11 Motion for Court Assistance is DENIED without prejudice. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE LUIS BUENROSTRO,

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Plaintiff,

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No. 2:15-cv-0138-JAM-KJN PS

v.

ORDER

ROBERTO S. BUENROSTRO &
GUADALUPE V. BUENROSTRO,

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Defendants.

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Plaintiff, who proceeds without counsel and is presently incarcerated in Pollock,

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Louisiana, commenced this action on January 20, 2015. (ECF No. 1.)1 On March 18, 2015,

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defendants, represented by counsel, filed a motion to dismiss the action for lack of subject matter

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jurisdiction. (ECF No. 10.) Local Rule 230(l) provides, in part, as follows:

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All motions, except motions to dismiss for lack of prosecution, filed
in actions wherein one party is incarcerated and proceeding in
propria persona, shall be submitted upon the record without oral
argument unless otherwise ordered by the Court. Such motions
need not be noticed on the motion calendar. Opposition, if any to
the granting of the motion shall be served and filed by the
responding party not more than twenty-one (21) days after the date

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This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C.
§ 636(b)(1). Although plaintiff is incarcerated, this action does not challenge plaintiff’s
underlying conviction/sentence or the conditions of his confinement. As such, the case was
designated as a regular pro se civil action.
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of service of the motion. A responding party who has no
opposition to the granting of the motion shall serve and file a
statement to that effect, specifically designating the motion in
question. Failure of the responding party to file an opposition or to
file a statement of no opposition may be deemed a waiver of any
opposition to the granting of the motion and may result in the
imposition of sanctions.

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E.D. Cal. L.R. 230(l). Although the 21-day period has now expired, plaintiff has yet to file an

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opposition to the pending motion to dismiss. Nevertheless, in light of plaintiff’s pro se status, his

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incarceration out of state, and the court’s desire to resolve the motion on the merits, the court

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finds it appropriate to provide plaintiff with an extension to oppose the motion, as set forth

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below.2
Furthermore, on April 2, 2015, plaintiff filed a “motion to request assistance from the

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court to direct the defendants to confer or attempt to confer pursuant to this court’s January 20,

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2015 order.” (ECF No. 11.) Liberally construed, that motion appears to seek an order directing

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defendants to confer with plaintiff via telephone regarding the June 4, 2015 status conference,

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settlement of the case, trial preparation, and various discovery requests that plaintiff indicates he

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recently served on defendants. In light of the pending motion to dismiss for lack of subject matter

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jurisdiction, the court finds it appropriate to vacate the June 4, 2015 status conference and to stay

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any discovery pending resolution of that motion and any jurisdictional issues. As such, the court

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also denies plaintiff’s motion for court assistance at this juncture without prejudice.

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Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that:

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1. Plaintiff shall file an opposition or statement of non-opposition to the pending motion
to dismiss no later than May 5, 2015.

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2. Defendants shall file any reply to plaintiff’s opposition no later than May 19, 2015.

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Thereafter, the motion shall be submitted for decision without oral argument on the

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record and written briefing, with no further briefing permitted unless specifically

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Due to the delays sometimes resulting from prison mail, it may be that plaintiff has already
submitted an opposition or statement of non-opposition that has yet to reach the court at the time
of issuing this order. If that is the case, there is no need to submit a second opposition brief. As
long as the court has received an opposition (or statement of non-opposition) by the new deadline
set in this order, no further briefing from plaintiff will be necessary.
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requested by the court.
3. The June 4, 2015 status conference in this case is VACATED. If necessary, the court
will reschedule a status conference at a later date.
4. All formal discovery in this action is STAYED pending resolution of the motion to
dismiss for lack of subject matter jurisdiction.
5. Plaintiff’s motion for court assistance (ECF No. 11) is DENIED WITHOUT

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PREJUDICE.

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IT IS SO ORDERED.

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Dated: April 14, 2015

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