Smith v. Office of the Attorney General for the State of California et al

Filing 75

ORDER REGARDING ORDER TO SHOW CAUSE AND VACATING BRIEFING SCHEDULE ON MOTION FOR LEAVE TO FILE SEVENTH AMENDED COMPLAINT AND MOTION FOR A PRELIMINARY INJUNCTION. Signed by Judge Jeffrey S. White on 4/12/13. (jjoS, COURT STAFF) (Filed on 4/12/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JAMES D. SMITH,

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For the Northern District of California

United States District Court

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No. C 12-02463 JSW

Plaintiff,

ORDER REGARDING ORDER TO
SHOW CAUSE AND VACATING
BRIEFING SCHEDULE ON
MOTION FOR LEAVE TO FILE
SEVENTH AMENDED
COMPLAINT AND MOTION FOR
A PRELIMINARY INJUNCTION

v.

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KAMALA HARRIS, et al.,

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Defendants.
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This matter comes before the Court upon consideration of the response to an Order to

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Show Cause dated January 16, 2013, filed by Plaintiff, James D. Smith (“Mr. Smith”). On

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November 5, 2012, because of the multiple amended complaints and motions filed in this matter

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and in order to clarify, the Court Ordered that the operative complaint would be the fifth

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amended complaint received by the Court on October 19, 2012 (Docket No. 51), which was

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deemed filed as November 5, 2012. (See Docket No. 56.)

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In that Order, the Court also ordered that the fifth amended complaint would be the

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LAST iteration of the complaint filed in this matter, and it required Defendants to file their

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responsive pleading by no later than 14 days after service of the Order dated November 5, 2012.

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Notwithstanding this Order, on November 13, 2012, Mr. Smith filed a motion for leave to file a

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sixth amended complaint. On November 20, 2012, Defendants moved to dismiss the fifth

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amended complaint.

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On January 16, 2013, the Court denied Mr. Smith’s motion for leave to file a sixth
amended complaint, on the basis that the Court had ordered that the fifth amended complaint

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would be the LAST iteration of the Complaint. (Docket No. 61.)
Because the Mr. Smith had not filed a response to Defendants’ motion to dismiss the

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fifth amended complaint, the Court also ordered Mr. Smith to show cause why the case should

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not be dismissed for failure to prosecute, and it directed Mr. Smith to file a response to the

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Order to Show Cause by February 1, 2013. The Court also noted that if Mr. Smith sought to

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file a belated opposition brief to Defendants’ motion, he must show good cause for his request

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and must submit a proposed opposition brief with that request. The Court also ordered that any

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such request would also be due by no later than February 1, 2013.

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On January 30, 2013, Mr. Smith filed a Notice of Appeal of the Court’s Order dated
January 16, 2013, as well as several orders that the Court issued earlier in the case. Mr. Smith

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For the Northern District of California

United States District Court

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also filed his response to the Order to Show Cause, setting forth his reasons why the Court

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should not dismiss the case for failure to prosecute. However, Mr. Smith did not seek leave to

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file a belated opposition to the pending motion to dismiss.

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On February 8, 2013, the Court issued an Order in which it deferred ruling on Mr.

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Smith’s response to the Order to Show Cause, pending resolution of the appeal. On February

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28, 2013, the United States Court of Appeals for the Ninth Circuit dismissed Mr. Smith’s appeal

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for lack of jurisdiction, and it issued the mandate on March 25, 2013.

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The Court has considered Mr. Smith’s Response to the Order to Show Cause. Mr.

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Smith is proceeding pro se, and the Court is required to construe his pleadings liberally. In one

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of his most recent filings, Mr. Smith states that he thought he could continue to amend his

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complaint until the first hearing. (See Docket No. 72, Motion for Preliminary Injunction at 14.)

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Notwithstanding his pro se status, Mr. Smith is required to follow the Federal Rules of Civil

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Procedure and the Northern District Civil Local Rules and abide by this Court’s Orders.

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Ghazali v. Moran, 46 F.3d, 52, 54 (9th Cir. 1995) (noting that pro se litgants are bound by the

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rules of procedure), cert denied, 516 U.S. 838 (1995); Civil L.R. 3-9(a).

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The Court’s Order dated November 5, 2012 made it abundantly clear that the fifth

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amended complaint would be the LAST iteration of the complaint. The Court also clearly

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advised Plaintiff that an opposition to Defendant’s responsive pleading “shall be filed by
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Plaintiff within 14 days of the Defendants’ pleading or this case shall be DISMISSED.”

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(Docket No. 56 at 2:3-6 (emphasis in original).) Despite the Court’s clear directive that the fifth

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amended complaint would be the LAST iteration of the complaint, and despite the Order to

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Show Cause, Mr. Smith chose not to file an opposition to Defendants’ motion to dismiss the

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fifth amended complaint. Rather, after the Ninth Circuit dismissed his appeal, he filed a motion

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for leave to file yet another amended complaint, the seventh in this case, in which he seeks to

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add Governor Brown as a defendant and includes additional allegations. Mr. Smith also filed a

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motion for a preliminary injunction. (See Docket Nos. 70, 72.) Although it is clear that Mr.

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Smith seeks to prosecute this case, he has not complied with this Court’s Order. Therefore,
although the Court shall not dismiss this case for failure to prosecute, it shall issue a ruling on

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For the Northern District of California

United States District Court

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the motion to dismiss the fifth amended complaint.

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If the Court concludes that the motion to dismiss the fifth amended complaint should be

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granted, the Court shall consider Mr. Smith’s proposed seventh amended complaint solely to

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determine whether or not it would be futile to grant Mr. Smith leave to amend. For these

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reasons, the Court VACATES the briefing schedule relating to the motion for leave to file a

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seventh amended complaint and the motion for a preliminary injunction, pending further order

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of the Court.

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IT IS SO ORDERED.
Dated: April 12, 2013
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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9 JAMES D SMITH,
Plaintiff,

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For the Northern District of California

United States District Court

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Case Number: CV12-02463 JSW
CERTIFICATE OF SERVICE

v.

12 OFFICE OF THE ATTORNEY GENERAL
et al,
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Defendant.
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
16 District Court, Northern District of California.
17 That on April 12, 2013, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
18 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.
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21 James D. Smith
705 N. State Street #547
22 Ukiah, CA 95482
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24 Dated: April 12, 2013
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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk