Frances v. Accessible Space, Inc. et al

Filing 57

ORDER signed by Magistrate Judge Allison Claire on 4/19/19 DENYING Plaintiff's motion for an extension of time 55 ; The hearing on the motion to dismiss will remain set for 5/1/19, at 10:00 a.m.; Plaintiff may arrange a telephonic appearan ce by contacting the Courtroom Deputy at [phone] at least two days prior to the hearing date; Alternatively, if plaintiff informs the court in advance that she is unable to appear, the motion will be submitted without oral argument; Otherw ise, failure to appear at the hearing will be deemed a withdrawal of opposition and shall result in a recommendation that this action be dismissed; Defendants may file a reply not less than seven days before the hearing date; and The deadline for hearing substantive pretrial motions set in ECF No. 54 is hereby AMENDED to 6/1/19. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANGELICA FRANCES,

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No. 2:16-cv-01016 JAM AC (PS)

Plaintiff,
v.

ORDER

ACCESSIBLE SPACE, INC., et al.,
Defendants.

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Plaintiff is proceeding in this action pro se. The action was accordingly referred to the

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undersigned by Local Rule 302(c)(21). On March 4, 2019, defendants filed a motion to dismiss

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for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b). ECF No. 53. Plaintiff

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did not respond to the motion. The undersigned continued the hearing on the motion from

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April 3, 2019 to May 1, 2019 to give plaintiff another chance to file an opposition or statement of

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non-opposition; the new deadline was April 17, 2019. ECF No. 54.

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On April 17, 2019, plaintiff filed two documents. ECF Nos. 55, 56. The first has been

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docketed as a Motion for Extension of Time, and the caption contains several requests for more

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time to file a response in opposition to the motion to dismiss. ECF No. 55 at 1. However, the

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central heading of the document reads, “Plaintiff’s Response in Opposition to Defendants

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Accessible Space Inc., South Lake Tahoe Supportive Housing Inc’s Motion to Dismiss the First

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Amended Complaint,” and the bulk of plaintiff’s arguments are responsive to defendants’
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assertions of delay in support of their Rule 41(b) motion to dismiss. Id. at 1-6. Further, plaintiff

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attaches an incomplete Certificate of Service describing the foregoing as a “Response in

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Opposition to Defendants’ Motion to Dismiss FAC.” Id. at 8. The court therefore construes this

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document as plaintiff’s opposition to defendants’ motion to dismiss. The Clerk of the Court is

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instructed to file an additional copy of this document (ECF No. 55) as plaintiff’s Opposition to

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the pending motion to dismiss (ECF No. 53).

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In the same document, plaintiff additionally requests that the May 1, 2019 hearing be

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continued until June or July. ECF No. 55 at 1, 4. She states that she did not respond until

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April 17 because she did not receive the court’s order continuing the hearing on the motion until

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April 12, 2019 due to ongoing issues with mail delivery at her home address. Id. at 3-4. She

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further states that she is disabled and “very ill right now, and under medical care,” citing a severe

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respiratory infection. Id. at 5-6.

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The second document filed the same day is a “notice . . . to inform the court of delays in

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compliance due to a medical emergency.” Plaintiff describes a July 2018 injury to her right hand,

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requiring her continued use of a “cast/brace” which has made typing and other tasks difficult.

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ECF No. 56 at 1-2. She attaches various medical records related to the hand injury, and

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documentation of her complaints to the postal service. Id. at 4-35.

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The court acknowledges that plaintiff is proceeding under various health limitations.

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However, given that the hearing on the motion has already been continued for nearly one month,

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and that plaintiff has in fact filed a timely and responsive opposition to the motion, the court

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declines to extend the proceedings further. Plaintiff may arrange a telephonic appearance at the

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hearing by contacting the Courtroom Deputy at [phone] at least two days prior to the

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hearing date. Alternatively, if plaintiff informs the court in advance that she is unable to appear

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either in person or by telephone, the motion will be submitted without oral argument pursuant to

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Local Rule 230(g).

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an extension of time (ECF No. 55) is DENIED;

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2. The Clerk of Court shall file an additional copy of ECF No. 55, to be docketed as
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plaintiff’s Opposition to the pending motion to dismiss (ECF No. 53), with a filing

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date of April 17, 2019;

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3. The hearing on the motion to dismiss will remain scheduled for May 1, 2019, at
10:00 a.m. in Courtroom No. 26;
4. Plaintiff may arrange a telephonic appearance at the hearing by contacting the
Courtroom Deputy at [phone] at least two days prior to the hearing date;
5. Alternatively, if plaintiff informs the court in advance that she is unable to appear

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either in person or by telephone, the motion will be submitted without oral

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argument;

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6. Otherwise, failure to appear at the hearing will be deemed a withdrawal of

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opposition and shall result in a recommendation that this action be dismissed

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pursuant to Federal Rule of Civil Procedure 41(b);

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7. Defendants may file a reply not less than seven days before the hearing date; and

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8. The deadline for hearing substantive pretrial motions set in ECF No. 54 is hereby

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AMENDED to June 1, 2019.
DATED: April 19, 2019

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