Garth v. John Tennant Memorial-Episcopal Senior Communities (JTM-ESC) et al

Filing 92

ORDER WITHDRAWING IN PART PRIOR ORDER OF DISMISSAL AND REOPENING CASE. Signed by Judge Richard Seeborg on 12/29/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 12/29/2011)

**E-filed 12/29/11**

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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JOHN GARTH, et al.,

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For the Northern District of California

United States District Court

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Plaintiffs,
v.

No. C 11-00748 RS
ORDER WITHDRAWING IN PART
PRIOR ORDER OF DISMISSAL AND
REOPENING CASE

JOHN TENNANT MEMORIALEPISCOPAL SENIOR COMMUNITIES
(JTM-ESC); VINCENT CHEUNG; THE
OAK CENTER TOWERS OFFICE STAFF;
GUARDSMARK SECURITY and STAFF;
and DEFENDANT DOES 1-20,
Defendants.
___________________________________/

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On December 14, 2011, the Court entered an order denying three motions filed by plaintiffs

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on December 1, 2011, and dismissing the case for failure to prosecute. (Dkt. No. 90) In so doing,

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the Court noted that plaintiffs’ prior complaint was dismissed in its entirety, but with leave to

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amend, on November 21, 2011. The deadline for amendment was December 8, 2011. Although the

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order stated that plaintiffs never filed a second amended complaint (SAC), in fact, plaintiffs did file

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a SAC that was received on December 9. Due to a filing error at the Court, however, the SAC was

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not docketed until December 22. As a result, the case was wrongly dismissed for failure to

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prosecute.

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In light of plaintiffs’ pro se status, and the fact that their SAC was received only one day
late, the Court hereby withdraws, in part, its December 14 order of dismissal for failure to prosecute,
NO. C 11-0748 RS
ORDER

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directs the Clerk to reopen the case, and recognizes the SAC as the legally effective pleading in this

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case. However, the December 14 order remains in force to the extent it properly denied plaintiffs’

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three motions because: (1) at the time they were filed on December 1, there was no operative

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complaint, and (2) all three motions lacked legal and factual support. Defendants are instructed to

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answer or otherwise respond to plaintiffs’ SAC within 21 days of this order.

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IT IS SO ORDERED.

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RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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Dated: 12/29/11

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NO. C 11-0748 RS
ORDER

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