Towers et al v. Villapudua et al

Filing 24

ORDER signed by Magistrate Judge Kendall J. Newman on 12/5/2016 ORDERING that the 12/15/2016 hearing on the pending motions to dismiss and motion to strike is VACATED. Plaintiffs shall file either an opposition to the pending motions or a request for voluntary dismissal by 1/5/2017. Defendants shall file a reply no later than 1/19/2017. No further briefing will be permitted, unless specifically requested by the court. Within 21 days of this order, all parties who have appeared in the action shall file a brief statement indicating whether or not they consent to the jurisdiction of a United States Magistrate Judge for all purposes, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c). (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROGER TOWERS & CATHERINE
TOWERS,
Plaintiffs,

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No. 2:16-cv-2417-MCE-KJN PS

ORDER
v.
CARLOS VILLAPUDUA, et al.,
Defendants.

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Plaintiffs initially commenced this action and paid the filing fee on October 11, 2016.

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(ECF No. 1.) Presently pending before the court are multiple motions to dismiss and a motion to

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strike filed by several defendants in this action, which were noticed for hearing on December 15,

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2016. (ECF Nos. 5, 8, 15, 16, 17, 18, 20.) Pursuant to Local Rule 230(c), plaintiffs were required

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to file an opposition or statement of non-opposition to the motions no later than fourteen (14)

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days prior to the hearing, i.e., by December 1, 2016. Although that deadline has now passed, the

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court has yet to receive a responsive filing from plaintiffs.

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The court has considered whether the action should be dismissed at this juncture.

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However, in light of plaintiffs’ pro se status and the court’s desire to resolve the action on the

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merits, the court grants plaintiffs an additional opportunity to oppose the motions, if they desire to

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do so. Alternatively, if plaintiffs determine that they no longer wish to pursue this action in
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federal court, they may instead file a request for voluntary dismissal of the action without

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prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

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The court also notes that several of the appearing defendants have consented to the

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jurisdiction of a United States Magistrate Judge for all purposes, including the entry of final

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judgment, pursuant to 28 U.S.C. § 636(c). Therefore, within 21 days of this order, plaintiffs and

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any remaining appearing defendants shall file a brief statement indicating whether or not they

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consent to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

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Importantly, the parties are under no obligation to so consent, but the designation merely assists

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the court in determining how the action will be administratively processed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The December 15, 2016 hearing on the pending motions to dismiss and motion to

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strike is VACATED.

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2. No later than January 5, 2017, plaintiffs shall file either an opposition to the pending

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motions or a request for voluntary dismissal of the action without prejudice.

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3. Defendants shall file any reply briefs no later than January 19, 2017.

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4. No further briefing will be permitted, unless specifically requested by the court. After

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review of the parties’ written briefing, the court will schedule a hearing on the

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motions, if deemed necessary.

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5. Plaintiffs are cautioned that failure to file an opposition to the pending motions or a

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request for voluntary dismissal of the action without prejudice by the required

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deadline may result in dismissal of the action with prejudice pursuant to Federal Rule

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of Civil Procedure 41(b).

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6. Within 21 days of this order, all parties who have appeared in the action shall file a

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brief statement indicating whether or not they consent to the jurisdiction of a United

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States Magistrate Judge for all purposes, including the entry of final judgment,

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pursuant to 28 U.S.C. § 636(c).

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IT IS SO ORDERED.
Dated: December 5, 2016

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