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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 DAVID LITMON, JR., 9 Plaintiff, 11 For the Northern District of California United States District Court 10 v. EDMUND G. BROWN, Attorney General of California, et al., 12 No. C-10-3894 EMC ORDER DENYING PLAINTIFF’S MOTION FOR COURT TO RESCIND ORDER (Docket No. 50) Defendants. 13 ___________________________________/ 14 15 16 Plaintiff David Litmon, Jr. has moved the Court to rescind its order of September 12, 2011, 17 in which it granted Defendants’ motion to strike the first amended complaint. According to Mr. 18 Litmon, the order should be rescinded because it incorrectly stated that he did not file an opposition 19 to the motion. 20 Mr. Litmon is correct that he filed an opposition. However, that opposition was not timely 21 filed. See Civ. L.R. 7-3(a) (providing that an opposition must be filed and served not more than 14 22 days after the motion is filed and served). In any event, the Court has now considered the arguments 23 made by Mr. Litmon in his opposition and finds none of them availing. For example, Mr. Litmon 24 claims that Governor Brown signed and/or authorized California Penal Code § 290.012; however, 25 that does not mean that the governor is responsible for its enforcement. Also, Mr. Litmon does not 26 address in his opposition the basis on which other persons allegedly similarly situated received 27 preferential treatment. Finally, contrary to what Mr. Litmon asserts, the arguments made by 28 Defendants are entirely appropriate for consideration at the Rule 12(b)(6) phase rather than on 1 summary judgment. Only if a plaintiff pleads a facially plausible claim may he or she be permitted 2 to proceed with the case. 3 Finally, the Court notes that Mr. Litmon has not been prejudiced to the extent that, in its 4 September 12 order, the Court gave him an opportunity to file a second amended complaint which 5 he has now done. 6 To the extent Mr. Litmon has asked for alternative relief – i.e., that the September 12 order 7 be amended to reflect that he did an opposition – the Court notes that its order here renders that 8 relief moot. The Court acknowledges that Mr. Litmon did file an opposition but, as noted above, the 9 opposition was not timely filed. This order disposes of Docket No. 50. 11 For the Northern District of California United States District Court 10 12 IT IS SO ORDERED. 13 14 Dated: October 14, 2011 15 _________________________ EDWARD M. CHEN United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 DAVID LITMON, JR., 9 Plaintiff, v. CERTIFICATE OF SERVICE 11 For the Northern District of California United States District Court 10 No. C-10-3894 EMC EDMUND G. BROWN, Attorney General of California, et al., 12 Defendants. 13 14 ___________________________________/ 15 16 I, the undersigned, hereby certify that I am an employee in the U.S. District Court, Northern 17 District of California. On the below date, I served a true and correct copy of the attached, by placing 18 said copy/copies in a postage-paid envelope addressed to the person(s) listed below, by depositing 19 said envelope in the U.S. Mail; or by placing said copy/copies into an inter-office delivery 20 receptacle located in the Office of the Clerk. 21 22 DAVID LITMON, JR. 32314 Ruth Court Union City, CA 94587 23 Dated: October 14, 2011 RICHARD W. WIEKING, CLERK 24 25 26 27 28 By: /s/ Leni Doyle Leni Doyle Deputy Clerk

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