Benyamini v. Terry et al.

Filing 20

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/16/16 ORDERING that within 30 days from the date of this order, defendants shall file a responsive pleading or motion in accordance with Rule 12 (or if appropriate Rule 56). Ruling on defend ants' motion for an order declaring plaintiff a vexatious litigant (ECF No. 14 ) is deferred pending the resolution of any Rule 12 or Rule 56 motion. The Clerk shall terminate ECF No. 14 . With any answer, defendants may file a notice of renewal. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT BENYAMINI,

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No. 2:15-cv-2615-TLN-EFB P

Plaintiff,
v.

ORDER

TERRY, et al.,
Defendants.

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Plaintiff is a former state prisoner proceeding without counsel in an action brought under

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42 U.S.C. § 1983. Instead of filing a responsive pleading or motion in accordance with Rule 12

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of the Federal Rules of Civil Procedure, defendants have filed a motion for an order declaring

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plaintiff a vexatious litigant and requiring security under Local Rule 151(b). Local Rule 151(b)

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adopts the provisions of Title 3A, part 2, of the California Code of Civil Procedure, relating to

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vexatious litigants. One of those provisions provides that when a vexatious litigant motion is

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filed prior to trial, the litigation – including the moving defendant’s obligation to plead – is

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stayed. Cal. Civ. Proc. Code § 391.6. Setting aside the question of whether that stay provision is

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in variance with the pleading practices prescribed by the Federal Rules of Civil Procedure, Local

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Rule 151 (b) also states that the Court’s power “shall not be limited” by this provision. See E.D.

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Cal., Local Rule 151(b). Here, defendants’ motion calls upon the court to examine the merits of

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plaintiff’s complaint. Defendants contend that the allegations of the complaint do not state a

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claim upon which relief may be granted. The standards and procedures for determining whether
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plaintiff’s complaint is sufficient to state a claim are set out in Rule 12 of the Federal Rules of

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Civil Procedure and governed by federal, not state law. For that reason, the court exercises its

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discretion under Local Rule 151(b) to require defendants to address their contention that

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plaintiff’s complaint is either frivolous or fails to state a claim pursuant to a properly noticed and

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briefed motion presented under either Rule 12 or Rule 56 of the Federal Rules of Civil Procedure.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within 30 days from the date of this order, defendants shall file a responsive pleading

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or motion in accordance with Rule 12 (or if appropriate Rule 56).

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2. Ruling on defendants’ motion for an order declaring plaintiff a vexatious litigant (ECF

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No. 14) is deferred pending the resolution of any Rule 12 or Rule 56 motion. The

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Clerk shall terminate ECF No. 14. With any answer, defendants may file a notice of

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renewal.

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DATED: November 16, 2016.

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