Cearley v. Wells Fargo Bank

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/16/15 ORDERING that Defendant shall conventionally serve plaintiff with a copy of the motion to dismiss in compliance with the court's local rules and the Federal Rules of Civil Procedur e by no later than April 20, 2015; The hearing on defendant's motion to dismiss, ECF No. 4, is continued to May 20, 2015; Plaintiff shall file an opposition to the motion, or a statement of non-opposition thereto,no later than May 6, 2015; and Defendant may file a reply to plaintiff's opposition, if any, on or before May 13, 2015. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD E. CEARLEY,

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No. 2:15-cv-353-MCE-EFB PS

Plaintiff,
v.

ORDER

WELLS FARGO BANK,
Defendant.

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On February 18, 2015, defendant filed a motion to dismiss plaintiff’s complaint for failure

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to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and noticed the motion for

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hearing on April 22, 2015. ECF No. 4. The docket reflects that plaintiff has not filed an

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opposition or statement of non-opposition to the motion. Local Rule 230(c) provides that

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opposition to the granting of a motion, or a statement of non-opposition thereto, must be served

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upon the moving party, and filed with this court, no later than fourteen days preceding the noticed

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hearing date or, in this instance, by April 8, 2015.

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However, it does not appear that plaintiff was properly served with a copy of the

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defendant’s motion. The proof of service attached to the motion to dismiss states that plaintiff

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was served electronically via the court’s CM/ECF System. ECF No. 4 at 27. Local Rule 135(b)

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provides that electronic service is inappropriate for parties that have not registered with CM/ECF,

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e.g. prisoners or pro se parties, and that such parties must be conventionally served. E.D. Cal.
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L.R. 135(b). The court has not authorized plaintiff to register with CM/ECF or to otherwise

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receive service electronically. See E.D. Cal. L.R. 133(b)(2) (“Any person appearing pro se may

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not utilize electronic filing except with the permission of the assigned Judge or Magistrate

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Judge.”). Thus, defendant failed to properly serve plaintiff with a copy of the motion to dismiss.

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Accordingly, it is hereby ORDERED that:

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1. Defendant shall conventionally serve plaintiff with a copy of the motion to dismiss in

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compliance with the court’s local rules and the Federal Rules of Civil Procedure by no later than

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April 20, 2015;

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2. The hearing on defendant’s motion to dismiss, ECF No. 4, is continued to May 20,
2015;
3. Plaintiff shall file an opposition to the motion, or a statement of non-opposition thereto,
no later than May 6, 2015; and
4. Defendant may file a reply to plaintiff’s opposition, if any, on or before May 13, 2015.
DATED: April 16, 2015.

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