David v. Merritt et al

Filing 18

ORDER re 9 MOTION to Dismiss filed by Jacky Worden, 16 Amended MOTION to Dismiss filed by Tyneia G. Merritt, Merritt Law, Inc.. Signed by Judge ARMSTRONG on 1/19/12. (lrc, COURT STAFF) (Filed on 1/20/2012)

1
2

UNITED STATES DISTRICT COURT

3

FOR THE NORTHERN DISTRICT OF CALIFORNIA

4

OAKLAND DIVISION

5

ASHLEY VINCENT DAVID,

Case No: C 11-4090 SBA

6

Plaintiff,
7

vs.
8

ORDER DIRECTING PLAINTIFF
TO FILE RESPONSES TO
DEFENDANTS’ MOTIONS TO
DISMISS

TYNEIA G. MERRITT, ESQ.; et al.,
9

Defendants.
10
11
12

Defendant Jackie Worden filed a motion to dismiss on September 9, 2011. Dkt. 9.

13

On October 17, 2011, Tyneia Merritt and Merritt Law, Inc. separately filed a motion to

14

dismiss. Dkt. 16. Both motions are noticed for hearing on February 7, 2012.

15

Under Civil Local Rule 7-3(a), an opposition to a motion must be filed within

16

fourteen days of the date the motion was filed, and the reply is due seven days thereafter.

17

As such, Plaintiff’s response to the first motion to dismiss was due by September 23, 2011,

18

and her response to the second motion was due by October 31, 2011. To date, however,

19

Plaintiff has not filed a response to either motion.

20

This Court’s Standing Orders warn that the failure to respond to a motion may be

21

deemed to be a consent to the granting of the unopposed motion. Dkt. 14 at 5. As such, it

22

is well within the discretion of the Court to dismiss the action for failure to prosecute. See

23

Fed. R. Civ. P. 41(b); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Nevertheless,

24

mindful of its obligation to first consider to less drastic alternatives, the Court will afford

25

Plaintiff one further opportunity to respond to the pending motions. Accordingly,

26

IT IS HEREBY ORDERED THAT Plaintiff shall have until January 27, 2012 to file

27

and serve his response (i.e., either an opposition or a statement of non-opposition) to each

28

of the pending motions to dismiss. Each response shall comply in all respects with the

1

Federal Rules of Civil Procedure and the Court’s Civil Local Rules, including, without

2

limitation, Civil Local Rules 7-3 through 7-5. PLAINTIFF IS WARNED THAT THE

3

FAILURE TO FILE HIS RESPONSES BY THIS DEADLINE AND/OR TO

4

COMPLY WITH THIS ORDER OR ANY OTHER APPLICABLE PROCEDURAL

5

RULES WILL RESULT IN THE DISMISSAL OF THIS ACTION. In the event

6

Plaintiff timely files his responses, Defendants may file a reply seven days after the

7

deadline for Plaintiff’s responses. The Case Management Conference and motion hearing

8

scheduled for February 7, 2012 are VACATED. The Court will adjudicate the motions

9

without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7-1(b).

10
11

IT IS SO ORDERED.
Dated: January 19, 2012

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-

1
2

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

3
DAVID et al,
4
Plaintiff,
5
v.
6
MERRITT et al,
7

Defendant.
/

8
9

Case Number: CV11-04090 SBA
10
CERTIFICATE OF SERVICE
11
12

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.

13
14
15

That on January 20, 2012, 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 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.

16
17
18

Ashley Vincent David
5417 Summerfield Drive
Antioch, CA 94531

19
20

Dated: January 20, 2012
Richard W. Wieking, Clerk

21
By: LISA R CLARK, Deputy Clerk
22
23
24
25
26
27
28
-3-