Davis-Rice v. United States of America
ORDER DIRECTING SUPPLEMENTAL BRIEFING; CONTINUING HEARING. The government is directed to file a supplemental brief, no later than November 4, 2011. Davis-Rice shall file any supplemental opposition no later than November 18, 2011. The hearing on t he motion, currently scheduled for October 21, 2011, is continued to December 9, 2011. The Case Management Conference, currently scheduled for October 21, 2011 is continued to January 27, 2011. Signed by Judge Maxine M. Chesney on October 18, 2011. (mmclc2, COURT STAFF) (Filed on 10/18/2011) (Additional attachment(s) added on 10/18/2011: # 1 Certificate of Service) (tlS, COURT STAFF).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
For the Northern District of California
United States District Court
No. C 11-3203 MMC
ORDER DIRECTING SUPPLEMENTAL
BRIEFING; CONTINUING HEARING
UNITED STATES OF AMERICA, et al.,
Before the Court is defendant United States of America’s (“the government”) Motion
to Dismiss and Motion for Pre-filing Screening Order or, in the Alternative, Motion to
Transfer Case, filed September 7, 2011 (“Motion”). Plaintiff Astarte Davis-Rice (“Davis-
Rice”) has filed opposition thereto, to which the government has replied.
By the instant action, Davis-Rice alleges a number of claims under the Federal Tort
Claims Act (“FTCA”). In its Motion, the government states Davis-Rice previously filed two
FTCA cases, and argues the instant complaint is “substantially similar” to the complaints in
those prior cases. (See Mot. at 7:26-28.) One of the cases, Davis-Rice v. United States, et
al., 07-6483 (N.D. Cal.), was before the undersigned and was dismissed without prejudice
by reason of Davis-Rice’s failure to pay the filing fee. The other, Davis-Rice v. United
States, et al., 07-2072 (D. D.C.), was filed in the District of Columbia (“the D.C. Case”); the
government states the District of Columbia thereafter transferred the case to the District of
the Virgin Islands, but does not provide any information regarding the status of the case
after said transfer. (See Mot. at 6:15-7:1.) Whether the D.C. Case is still pending and, if
not, the manner in which the case was resolved, may bear on the Court’s determination as
to whether the above-titled case should proceed. (See Order Re Application to Proceed in
Forma Pauperis, filed July 7, 2011 (granting Davis-Rice’s application)); Cato v. United
States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (holding, under 28 U.S.C. § 1915, action
brought in forma pauperis subject to dismissal where complaint “merely repeats pending or
previously litigated claims”).
Accordingly, the government is hereby DIRECTED to file a supplemental brief, no
later than November 4, 2011, addressing the status of the D.C. Case after its transfer to the
District of the Virgin Islands. Davis-Rice shall file any supplemental opposition no later than
November 18, 2011. In light of this order, the hearing on the Motion, currently scheduled
for October 21, 2011, is hereby CONTINUED to December 9, 2011 at 9:00 a.m. The Case
Management Conference, currently scheduled for October 21, 2011 is hereby
CONTINUED to January 27, 2012 at 10:30 a.m.
IT IS SO ORDERED.
Dated: October 18, 2011
MAXINE M. CHESNEY
United States District Judge
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