Pringle v. Gentry et al

Filing 21

ORDER signed by Magistrate Judge Allison Claire on 3/15/18, ORDERING that plaintiff's 19 motion to vacate is DENIED. (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAMELA DENISE PRINGLE, 12 13 14 15 No. 2:17-cv-02206 TLN AC PS Plaintiff, v. ORDER AMANDA GENTRY, et al., Defendants. 16 17 Plaintiff is proceeding in this case in pro se. The proceeding has accordingly been 18 referred to the magistrate judge by E.D. Cal. R. (“Local Rule”) 302(c)(21). On March 14, 2018, 19 plaintiff filed an Ex Parte Motion to Vacate the hearing set before the undersigned on March 28, 20 2018 on defendant’s Motion to Dismiss for Lack of Jurisdiction (ECF No. 12). ECF No. 19. 21 Plaintiff’s motion is DENIED. 22 Plaintiff argues that the Magistrate Judge cannot hear defendant’s motion to dismiss 23 because plaintiff is not a prisoner and she did not consent to magistrate judge jurisdiction. ECF 24 No. 19 at 2-3. This is incorrect; Local Rule 302(c)(21) states that the magistrate judge shall hear 25 all dispositive and non-dispositive matters when a party is representing herself (appearing in pro 26 se). Federal Rule of Civil Procedure 72(b)(1) explains that, without consent from the parties, a 27 magistrate judge may hear a “dispositive motion” and submit findings and recommendations to 28 the district judge for a final ruling. A motion to dismiss is a dispositive motion. Accordingly, the 1 magistrate judge will conduct the hearing and initially evaluate the merits of the motion, but – 2 because the parties have not consented to the magistrate judge serving as presiding judge for the 3 case – the assigned U.S. District Judge will make the ultimate decision whether to adopt the 4 magistrate judge’s recommendation. See 28 U.S.C. § 636(b)(1)(B). 5 Defendant’s motion to dismiss is properly noticed for hearing before the magistrate judge. 6 The hearing will go forward on March 28, 2018 before the magistrate judge. At the hearing, the 7 undersigned will further discuss the respective roles of the magistrate judge and district judge. 8 It is hereby ordered that plaintiff’s motion to vacate (ECF No. 19) is DENIED. 9 DATED: March 15, 2018 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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