Bumagat v. Shillinger et al

Filing 16

ORDER signed by Magistrate Judge Gregory G. Hollows on 3/1/2018 SETTING a Motion Hearing re Motion to Dismiss and Motion to Strike Defenses in case 2:17-cv-2008 TLN GGH for 4/5/2018 at 09:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hollows. Counsel to appear so that they may participate in procedural discussions. (Fabillaran, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MAYNARD EDRALIN BUMAGAT,

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Plaintiff,

No. 2:17-c-02008-TLN-GGH
ORDER

v.

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TERRY SHILLINGER, et al.,

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Defendants.

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ORDER TO SHOW CAUSE

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On January 22, 2018 this court issued an Order to Show Cause requiring plaintiff to

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explain why he failed to attend a scheduled court hearing on the Motion to Dismiss filed by

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defendants County of Solano and Amy Furlong which was held on January 18, 2018. ECF 31.

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Plaintiff responded to that Order on January 22, 2018, and the Order will now be discharged.

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PROCEDURAL HISTORY

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In the period after the Motion to Dismiss was at issue and scheduled for hearing, but

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before the hearing was held, plaintiff filed a Motion to Strike Affirmative Defenses, ECF No. 22,

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raised in an Answer to his complaint filed by defendants Jeff Basset, Andrew Bidou, City of

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Vallejo and Terry Shillinger, ECF No. 16, a Motion for Procedural Accommodations, ECF No.

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24, a Motion to Amend his Complaint, ECF No. 25, a copy of the proposed Fourth Amended

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Complaint against all defendants, ECF No. 26, and a Motion to Reissue Summons, ECF No. 27
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All of plaintiff’s filings predated the scheduled hearing date.

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In addition soon after the filing of the complaint in this case, plaintiff filed another,

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substantially identical complaint in case number 2:17-cv-2022-KJM-AC PS arising from the

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same nucleus of operative facts and naming all of the defendants in the instant case plus some

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additions.1 He was granted in forma pauperis status in that case by Magistrate Judge Allison

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Claire before the later case was related to this case pending before District Judge Nunley and the

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undersigned. In 17-cv-2022, plaintiff has filed a Motion to Strike Affirmative Defenses, although

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no Answer appears to have been filed in this matter, a Motion for Leave to File an Amended

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complaint, ECF No. 10, a copy of the proposed amendment, ECF No. 11, a Motion to Reissue

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Summons, ECF No. 12 and a Motion for Procedural Accommodations, ECF No. 13. Plaintiff’s

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Opposition to the Motion to Dismiss filed in 17-cv-2008 was filed in 17-2022 in error which

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caused some confusion. ECF No. 14. There has been no action taken by the defendants in this

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second case.

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DISCUSSION

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It had been the intention of the court to address all of the issues raised by both of these

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cases and to attempt to clear up plaintiff’s confusion during the scheduled hearing. Plaintiff,

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however, appears to believe that his appearance was never requested, or was waived by one of the

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court’s earlier Orders. As a threshold matter, then, it is important for plaintiff to understand that

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when a hearing is noticed (and unless expressly vacated by the court), it is expected that all

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parties will appear at the hearing, either in person if acting pro se, or through counsel if they are

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represented, as much of the procedural guidance requested by plaintiff is often provided during

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such hearings where all parties can be heard on such issues.

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In order to achieve some clarity with these actions, the court will reschedule a hearing on

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the issues outstanding in both this case and the duplicative one – 2:17-cv-2022 – to be held on

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April 5, 2018, with all parties present. The parties should be prepared to discuss the following

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issues:

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The additional defendants are Solano County District Attorney, Prosecutor Krishna A. Abrams,
and Deputy District Attorney Adam C. Wright.
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The merits of defendant’s Motion to Dismiss in this case;

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The merits of plaintiff’s Motion to Strike Affirmative Defenses in this case;

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Whether the duplicative case – 2:17-cv-2022 – should continue as a separate

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matter or be merged or into the instant case, otherwise be dismissed, or be consolidated;
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Any other issues of which the parties make the court aware before the scheduled

hearing discussion of which may facilitate moving this case forward.

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In light of the foregoing, IT IS HEREBY ORDERED that:

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1.

This Court’s Order to Show Cause is discharged;

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2.

The Clerk shall schedule a hearing of defendant’s pending Motion to Dismiss, and

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plaintiff’s filed Motion to Strike Defenses for 9:00 a.m. on April 5, 2018;
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Defendants shall file any Opposition to the Motion to Strike no later than 14

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calendar days prior to the scheduled hearing and plaintiff may file any Reply thereto no later than

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7 days prior to the scheduled hearing;

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4.

Notice of this order shall be given in case number 2:17-cv-2022 so that counsel in

that case may appear and participate in procedural discussions as well;
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The plaintiff is given permission to file documents through the ECF filing system

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and must contact the Clerk of the Court at 501 I Street, 4th Floor, Sacramento, CA 95814, for

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instructions on the proper use of the system;

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6.

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IT IS SO ORDERED.

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No further motions shall be filed by any party prior to the scheduled hearing.

Dated: March 1, 2018
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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