Franklin v. Kramer

Filing 13

ORDER DENYING AS MOOT 12 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge Laurel Beeler on 2/28/2013. (Attachments: # 1 Exhibit, # 2 Exhibit) (lblc2, COURT STAFF) (Filed on 2/28/2013) (Additional attachment(s) added on 2/28/2013: # 3 Certificate/Proof of Service) (ls, COURT STAFF).

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
TOM FRANKLIN,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 12-06335 LB
Plaintiff,

v.
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ORDER DENYING AS MOOT
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT

PHILIP KRAMER,
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[Re: ECF No. 12]
Defendant.
_____________________________________/
On December 13, 2012, plaintiff Tom Franklin filed a complaint and an application to proceed in

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forma pauperis (“IFP application”). Complaint, ECF No. 1; IFP Application, ECF No. 3.1 Mr.

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Franklin consented to the undersigned’s jurisdiction on January 4, 2013. Consent (Plaintiff), ECF

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No. 8. On January 8, 2013, the court denied without prejudice Mr. Franklin’s IFP application

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because it was incomplete and dismissed without prejudice his complaint because it was, at best,

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clearly insufficient, and at worst, frivolous. See 1/8/2013 Order, ECF No. 9. In its order, the court

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gave Mr. Franklin until February 7, 2013 to file a First Amended Complaint and to file another IFP

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application. See id. at 5.

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Mr. Franklin did neither. Instead, on February 21, 2013, he filed a letter that was addressed to
the Clerk of the Court that simply stated: “I have been having a problem with getting the defendant

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page
number at the top of the document, not the pages at the bottom.
C 12-06335 LB
ORDER

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comply with the judge[’]s order.” 2/21/2013 Letter, ECF No. 10. This letter, obviously, was not a

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First Amended Complaint or an IFP application, and the letter also does not suggest that either of

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these documents are going to be filed. Thus, on February 25, 2013, after considering the factors set

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forth in Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992), the court concluded that four of

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the five relevant factors weighed in favor of dismissal, dismissed without prejudice Mr. Franklin’s

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action for failure to prosecute it, and directed the Clerk of the Court to close the file.

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Later that day, the court received Mr. Franklin’s motion for summary judgment. Motion, ECF

[the] judge’s order”; “all efforts to reach the defendant ha[ve] been futile”; (3) the court order[e]d

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both plaintiff and defendant to participate and the defendant has refused”; and (4) “the defendant[]

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failed to answer the court’s order of December 13, 2012,” which, presumably is the Order Setting

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For the Northern District of California

No. 12. In it, Mr. Franklin asserts that: (1) the defendant, Philip Kramer, “failed to comply with

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UNITED STATES DISTRICT COURT

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Initial Case Management Conference and ADR Deadlines. Id. at 1. Because, however, the court has

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already dismissed this action without prejudice, the court DENIES AS MOOT Mr. Franklin’s

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motion for summary judgment. And for the sake of clarity, the court also attaches to this order

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copies of its two previous order, dated January 8, 2013 and February 25, 2013, respectively.

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IT IS SO ORDERED.
Dated: February 28, 2013
_______________________________
LAUREL BEELER
United States Magistrate Judge

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C 12-06335 LB
ORDER

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