Whitsitt v. Zedlitz et al

Filing 76

ORDER CONTINUING HEARING ON MOTION TO DISMISS; VACATING CASE MANAGEMENT CONFERENCE; INSTRUCTIONS TO THE CLERK; AND DIRECTING DEFENDANT TO RE-SERVE MOTION TO DISMISS. Motion Hearing set for 4/20/2012 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White.. Signed by Judge Jeffrey S. White on 2/21/12. (jjoS, COURT STAFF) (Filed on 2/21/2012) (Additional attachment(s) added on 2/21/2012: # 1 Certificate of Service) (jjoS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WILLIAM J. WHITSITT,

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For the Northern District of California

United States District Court

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No. C 08-01803 JSW

Plaintiff,
v.
JEAN ZEDLITZ, et al.
Defendants.
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ORDER CONTINUING HEARING
ON MOTION TO DISMISS,
VACATING CASE
MANAGEMENT CONFERENCE;
INSTRUCTIONS TO CLERK;
AND DIRECTING DEFENDANT
TO RE-SERVE MOTION TO
DISMISS

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On November 2, 2011, the Ninth Circuit issued an opinion in which it affirmed, in part,

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and reversed, in part, this Court’s Order granting Defendants’ motion to dismiss. In that Order,

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the Court also dismissed a due process claim that Plaintiff asserted against R. Lance & Son. On

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December 16, 2011, this Court issued an Order directing that service be effected upon R. Lance

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& Son. The Court served that Order on Plaintiff. However, the docket reflects that it was

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returned as undeliverable, apparently because Plaintiff has moved and the time for forwarding

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his mail has expired. (See Docket No. 69.)

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Pursuant to Northern District Civil Local Rule 3-11(a), when a party’s address changes

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during the course of litigation, it is that party’s duty to “promptly file with the Court and serve

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upon all opposing parties a Notice of Change of Address specifying the new address.” In

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addition, “[t]he Court may, without prejudice, dismiss a complaint or strike an answer when: (1)

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Mail directed to [that party] by the Court has been returned to the Court as not deliverable; and

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(2) The Court fails to receive within 60 days of this return a written communication from the

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[party] indicating a current address.” N.D. Civ. L.R. 3-11(b).

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Plaintiff has not submitted a change of address to this Court, and more than sixty days

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have passed since the Order Directing Service was returned. Although the Court could, within

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its discretion, dismiss this matter without prejudice, the Court was able to locate a different

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address for Plaintiff in materials that he filed during his appeal. Accordingly, the Clerk shall

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serve a copy of this Order on Plaintiff at the address currently listed on the docket as well as

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this new address. If Plaintiff does receive this Order, he is ORDERED to file a Notice of

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Change of Address with the Court and to serve that notice on all opposing parties. If this Order

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is returned as undeliverable to both addresses, and if the Court does not receive a Notice of

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Change of Address within sixty days of any returned mail, the Court shall dismiss this matter

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For the Northern District of California

United States District Court

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without prejudice.
On January 26, 2012, R. Lance & Sons. Co. filed a motion to dismiss, which is

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scheduled for a hearing on March 2, 2012. Under the Northern District Civil Local Rules,

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Plaintiff’s opposition to that motion would have been due on February 13, 2012. See N.D. Civ.

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L.R. 7-3(a), 5-5(a). Plaintiff has not filed an opposition to the motion. However, R. Lance &

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Sons served Plaintiff at his old address. Thus, it is not clear that Plaintiff has received a copy of

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the motion to dismiss. Accordingly, the Court HEREBY ORDERS Defendant to re-serve

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Plaintiff with the motion to dismiss, at both his old and presumably new address as set forth on

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the Certificate of Service to this Order, by no later than February 28, 2012, and to file proof of

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such service with the Court.

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The Court HEREBY CONTINUES the hearing on the Motion to Dismiss from March 2,

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2012 to April 20, 2012 at 9:00 a.m., and it VACATES the case management conference

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scheduled for March 23, 2012 at 1:30 p.m. Pursuant to this Order, Plaintiff shall file his

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opposition to the motion to dismiss by no later than March 16, 2012, and Defendant’s reply

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shall be due by no later than March 30, 2012. If the Court finds the matter suitable for

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disposition without oral argument, it shall notify the parties in advance of the hearing date.

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Finally, the Court HEREBY ADVISES Plaintiff that the Handbook for Pro Se Litigants,

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which contains helpful information about proceeding without an attorney, is available through

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the Court’s website or in the Clerk’s office. The Court also advises Plaintiff that he also may
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wish to seek assistance from the Legal Help Center. Plaintiff may call the Legal Help Center at

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415-782-9000, extension 8657, or sign up on the 15th Floor of the Courthouse, Room 2796, for

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a free appointment with an attorney who may be able to provide basic legal help, but not legal

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representation.

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IT IS SO ORDERED.

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Dated: February 21, 2012
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM J. WHITSITT et al,

Case Number: CV08-01803 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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JEAN ZEDLITZ et al,
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Defendant.

/

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For the Northern District of California

United States District Court

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
12 District Court, Northern District of California.
13 That on February 21, 2012, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
14 listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.
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William J. Whitsitt
17 1763 Ray Wise Lane
Tracy, CA 95376
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Dated: February 21, 2012
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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk