DeWitt v. Foot Locker Retail, Inc. et al

Filing 21

ORDER DENYING ADMINISTRATIVE MOTION TO STRIKE, SETTING BRIEFING SCHEDULE, AND CONTINUING MOTION HEARING. Set/Reset Deadlines as to 12 MOTION to Dismiss or For a More Definite Statement, 15 MOTION to Remand. Motion Hearing set for 9/24/2013 02:00 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Signed by Judge Yvonne Gonzalez Rogers on 8/21/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 8/21/2013)

1
2
3

UNITED STATES DISTRICT COURT
4

NORTHERN DISTRICT OF CALIFORNIA
5
6
7
8

TIMOTHY A. DEWITT,

9

Plaintiff,

10

United States District Court
Northern District of California

11

v.

Case No.: 13-CV-3459 YGR
ORDER DENYING ADMINISTRATIVE MOTION
TO STRIKE, SETTING BRIEFING SCHEDULE,
AND CONTINUING MOTION HEARING

FOOT LOCKER RETAIL, INC.; 1INK.COM,

12

Defendant(s).

13

Plaintiff Timothy A. DeWitt, a licensed California attorney1 proceeding pro se, brings this

14
15

action against Defendants Foot Locker Retail, Inc. (“Foot Locker”) and 1INK.com (“1INK”). Foot

16

Locker is allegedly a New York corporation and 1INK, which has not yet appeared in this action, is

17

allegedly a California business.
DeWitt claims that he received numerous emails in violation of California’s Anti-Spam Act,

18
19

Cal. Bus. & Prof. Code § 17529 et seq., and that Foot Locker and 1INK were the senders. DeWitt

20

originally filed his complaint in California state court; on July 25, 2013, Foot Locker removed to

21

this Court. Dkt. No. 1 (notice of removal), Ex. A (complaint). On August 1, 2013, Foot Locker

22

moved to dismiss the complaint or, in the alternative, for a more definite statement. Dkt. No. 12.

23

On August 8, 2013, DeWitt filed a paper he styled as: “Request Court Act Sua Sponte to Review

24

Removal and Subject-Matter Jurisdiction and Remand Case Back to California Superior Court for

25

Lack of Jurisdiction.” Dkt. No. 15. On August 14, 2013, Foot Locker filed an administrative

26
27
28

1

DeWitt’s public bar record may be viewed on the California State Bar website at
http://members.calbar.ca.gov/fal/Member/Detail/150631.

1

motion either to: strike DeWitt’s request; deny it; or construe it as a motion to remand and set a

2

briefing schedule.
The third option is the correct one. In substance, if not in form, DeWitt’s “request” is a

3
4

motion to remand, and it was timely filed. 28 U.S.C. § 1447(c). However, because DeWitt failed

5

to notice the motion properly2, no hearing date or briefing schedule has been set.
The Court SETS the hearing for DeWitt’s motion to remand, and CONTINUES the hearing for

6
7

Foot Locker’s pending motion to dismiss, to 2:00 p.m. on Tuesday, September 24, 2013, in

8

Courtroom 5, Federal Courthouse, 1301 Clay Street, Oakland, California. Foot Locker’s response

9

to DeWitt’s motion to remand is due no more than fourteen (14) days from the signature date of
this Order. Any reply to an opposition is due no more than seven (7) days from the date the

11

United States District Court
Northern District of California

10

opposition is filed. Civ. L.R. 7-3(c).
Foot Locker’s motion for administrative relief is GRANTED to the extent it requests leave to

12
13

brief DeWitt’s motion to remand, and otherwise DENIED.

14

This Order terminates Docket No. 16.

15

IT IS SO ORDERED.

16
17

Dated: August 21, 2013

18

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

19
20
21
22
23
24
25
26
27
28

2

The Court reminds DeWitt that he, like all pro se plaintiffs, “is bound by the Federal Rules, as
well as by all applicable local rules. Sanctions (including default or dismissal) may be imposed for
failure to comply with local rules.” Civ. L.R. 3-9(a). Further, as a licensed attorney, DeWitt is not
entitled to the deference afforded to typical pro se plaintiffs. Cf. Gottschalk v. Litt, CV 08-0466SGL MLG, 2009 WL 1704991, at *6 (C.D. Cal. June 15, 2009).
2