Davis-Rice v. United States of America

Filing 28

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).

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA For the Northern District of California United States District Court 10 11 ASTARTE DAVIS-RICE, Plaintiff, 12 v. 13 14 15 No. C 11-3203 MMC ORDER DIRECTING SUPPLEMENTAL BRIEFING; CONTINUING HEARING UNITED STATES OF AMERICA, et al., / Defendants. 16 17 Before the Court is defendant United States of America’s (“the government”) Motion 18 to Dismiss and Motion for Pre-filing Screening Order or, in the Alternative, Motion to 19 Transfer Case, filed September 7, 2011 (“Motion”). Plaintiff Astarte Davis-Rice (“Davis- 20 Rice”) has filed opposition thereto, to which the government has replied. 21 By the instant action, Davis-Rice alleges a number of claims under the Federal Tort 22 Claims Act (“FTCA”). In its Motion, the government states Davis-Rice previously filed two 23 FTCA cases, and argues the instant complaint is “substantially similar” to the complaints in 24 those prior cases. (See Mot. at 7:26-28.) One of the cases, Davis-Rice v. United States, et 25 al., 07-6483 (N.D. Cal.), was before the undersigned and was dismissed without prejudice 26 by reason of Davis-Rice’s failure to pay the filing fee. The other, Davis-Rice v. United 27 States, et al., 07-2072 (D. D.C.), was filed in the District of Columbia (“the D.C. Case”); the 28 government states the District of Columbia thereafter transferred the case to the District of 1 the Virgin Islands, but does not provide any information regarding the status of the case 2 after said transfer. (See Mot. at 6:15-7:1.) Whether the D.C. Case is still pending and, if 3 not, the manner in which the case was resolved, may bear on the Court’s determination as 4 to whether the above-titled case should proceed. (See Order Re Application to Proceed in 5 Forma Pauperis, filed July 7, 2011 (granting Davis-Rice’s application)); Cato v. United 6 States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (holding, under 28 U.S.C. § 1915, action 7 brought in forma pauperis subject to dismissal where complaint “merely repeats pending or 8 previously litigated claims”). 9 Accordingly, the government is hereby DIRECTED to file a supplemental brief, no 10 later than November 4, 2011, addressing the status of the D.C. Case after its transfer to the 11 District of the Virgin Islands. Davis-Rice shall file any supplemental opposition no later than 12 November 18, 2011. In light of this order, the hearing on the Motion, currently scheduled 13 for October 21, 2011, is hereby CONTINUED to December 9, 2011 at 9:00 a.m. The Case 14 Management Conference, currently scheduled for October 21, 2011 is hereby 15 CONTINUED to January 27, 2012 at 10:30 a.m. 16 IT IS SO ORDERED. 17 18 Dated: October 18, 2011 MAXINE M. CHESNEY United States District Judge 19 20 21 22 23 24 25 26 27 28 2

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