Litmon v. Brown

Filing 51

ORDER by Judge Edward M. Chen Denying 50 Plaintiff's Motion for Court to Rescind Order. (emcsec, COURT STAFF) (Filed on 10/14/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID LITMON, JR.,

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Plaintiff,

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For the Northern District of California

United States District Court

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v.
EDMUND G. BROWN, Attorney General of
California, et al.,

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No. C-10-3894 EMC

ORDER DENYING PLAINTIFF’S
MOTION FOR COURT TO RESCIND
ORDER
(Docket No. 50)

Defendants.
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___________________________________/
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Plaintiff David Litmon, Jr. has moved the Court to rescind its order of September 12, 2011,

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in which it granted Defendants’ motion to strike the first amended complaint. According to Mr.

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Litmon, the order should be rescinded because it incorrectly stated that he did not file an opposition

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to the motion.

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Mr. Litmon is correct that he filed an opposition. However, that opposition was not timely

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filed. See Civ. L.R. 7-3(a) (providing that an opposition must be filed and served not more than 14

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days after the motion is filed and served). In any event, the Court has now considered the arguments

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made by Mr. Litmon in his opposition and finds none of them availing. For example, Mr. Litmon

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claims that Governor Brown signed and/or authorized California Penal Code § 290.012; however,

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that does not mean that the governor is responsible for its enforcement. Also, Mr. Litmon does not

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address in his opposition the basis on which other persons allegedly similarly situated received

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preferential treatment. Finally, contrary to what Mr. Litmon asserts, the arguments made by

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Defendants are entirely appropriate for consideration at the Rule 12(b)(6) phase rather than on

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summary judgment. Only if a plaintiff pleads a facially plausible claim may he or she be permitted

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to proceed with the case.

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Finally, the Court notes that Mr. Litmon has not been prejudiced to the extent that, in its

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September 12 order, the Court gave him an opportunity to file a second amended complaint which

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he has now done.

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To the extent Mr. Litmon has asked for alternative relief – i.e., that the September 12 order

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be amended to reflect that he did an opposition – the Court notes that its order here renders that

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relief moot. The Court acknowledges that Mr. Litmon did file an opposition but, as noted above, the

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opposition was not timely filed.
This order disposes of Docket No. 50.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: October 14, 2011

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_________________________
EDWARD M. CHEN
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID LITMON, JR.,

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Plaintiff,
v.
CERTIFICATE OF SERVICE

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For the Northern District of California

United States District Court

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No. C-10-3894 EMC

EDMUND G. BROWN, Attorney General of
California, et al.,

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Defendants.
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___________________________________/

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I, the undersigned, hereby certify that I am an employee in the U.S. District Court, Northern

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District of California. On the below date, I served a true and correct copy of the attached, by placing

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said copy/copies in a postage-paid envelope addressed to the person(s) listed below, by depositing

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said envelope in the U.S. Mail; or by placing said copy/copies into an inter-office delivery

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receptacle located in the Office of the Clerk.

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DAVID LITMON, JR.
32314 Ruth Court
Union City, CA 94587

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Dated: October 14, 2011

RICHARD W. WIEKING, CLERK

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By:

/s/ Leni Doyle
Leni Doyle
Deputy Clerk