Bacon-Bercey v. Sullivan et al

Filing 16

ORDER TO SHOW CAUSE Show Cause Response due by 11/4/2011.. Signed by Judge JEFFREY S. WHITE on 10/20/11. (jjoS, COURT STAFF) (Filed on 10/20/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JUNE BACON-BERCEY,
Plaintiff,

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For the Northern District of California

United States District Court

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No. C 11-04242 JSW

v.

ORDER TO SHOW CAUSE WHY
CASE SHOULD NOT BE
DISMISSED

ROBERT J SULLIVAN, COL (RET),
Defendant.

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On July 18, 2011, Plaintiff filed a Complaint in the Small Claims division of the

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Superior Court of the State of California for the County of San Mateo. On August 29, 2011,

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Defendants removed the action to this Court, and the case originally assigned to Magistrate

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Judge Spero. On September 2, 2011, Defendants filed a motion to dismiss. On September 26,

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2011, Magistrate Judge Spero approved a stipulation regarding the briefing schedule for

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Defendants’ motion to dismiss so that the parties could pursue a possible resolution of the

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matter.
Pursuant to that Stipulation, Plaintiff’s opposition brief was due on October 14, 2011,

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and Defendant’s reply was due on October 24, 2011, and a hearing was scheduled for

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November 4, 2011. On September 28, 2011, because Plaintiff did not consent to proceed before

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Judge Spero, this matter was reassigned to the undersigned Judge, and all hearing dates were

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vacated.1

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Although the reassignment order directed the parties to re-notice any pending
motions, Defendants have not re-noticed the motion on this Court’s law and motion calendar.
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According to the record, Plaintiff failed to file an opposition brief by October 14, 2011.

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In addition, the copy of the Order issued by Judge Spero approving the briefing schedule that

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was sent to Plaintiff has been returned with a notation “vacant - unable to forward.” (See

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Docket No. 15.)

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Plaintiff is HEREBY ORDERED TO SHOW CAUSE why this matter should not be

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dismissed without prejudice for failure to prosecute. The Court notes that although Plaintiff is

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proceeding pro se, pursuant to Northern District Local Rule 3-11 a party proceeding pro se

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whose address changes while an action is pending must promptly file and serve upon all

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opposing parties a notice of change of address specifying the new address. See L.R. 3-11(a).
The court may, without prejudice, dismiss a complaint when: (1) mail directed to the attorney or

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For the Northern District of California

United States District Court

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the pro se party by the court has been returned to the court as not deliverable, and (2) the court

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fails to receive within 60 days of this return a written communication from the attorney or pro

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se party indicating a current address. See L.R. 3-11(b).

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Plaintiff’s response to this Order to Show Cause shall be due by no later than November

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4, 2011. If Plaintiff seeks to file a belated opposition brief to Defendant’s motion to dismiss,

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she must file a copy of her opposition with a motion demonstrating good cause for her belated

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filing. If the Court does not receive a response from Plaintiff by November 4, 2011, or if this

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Order is returned, the Court shall dismiss this action without prejudice pursuant to and in

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accordance with N.D. Civ. L.R. 3-11(b).

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IT IS SO ORDERED.

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Dated: October 20, 2011
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
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FOR THE
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NORTHERN DISTRICT OF CALIFORNIA
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7 JUNE BACON-BERCEY,
Plaintiff,

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Case Number: CV11-04242 JSW
CERTIFICATE OF SERVICE

v.

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For the Northern District of California

United States District Court

10 ROBERT J SULLIVAN, COL (RET) et al,
Defendant.

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13 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
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That on October 20, 2011, I SERVED a true and correct copy(ies) of the attached, by
15 placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
16 inter-office delivery receptacle located in the Clerk's office.
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June Bacon-Bercey
19 250 Baldwin Avenue, PEN 901
San Mateo, CA 94401
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Dated: October 20, 2011
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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk