Farahani v. Floria et al

Filing 82

ORDER setting deadlines for opposition and reply to motion to dismiss re 79 Order, 73 MOTION to Dismiss First Amended Complaint by Defendant Ronald Floria under FRCP Rule 12(b)(6) filed by Ronald A. Floria. Signed by Judge Lucy H. Koh on August 28, 2013. (lhklc2, COURT STAFF) (Filed on 8/28/2013)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 12 13 14 15 16 FRED FARMAHIN FARAHANI, ) ) Plaintiff, ) v. ) ) RONALD A. FLORIA, ADOLFO SALAZAR, ) PLM LENDER SERVICES, ) ) Defendants. ) ) ) Case No.: 12-CV-04637-LHK ORDER SETTING DEADLINES FOR OPPOSITION TO MOTION TO DISMISS AND REPLY TO MOTION TO DISMISS On April 19, 2013, the Court issued an order granting without prejudice Defendant Ronald 17 18 19 20 21 A. Floria’s (“Floria”) motion to dismiss Plaintiff’s complaint. Doc. No. 46 (“Dismissal Without Prejudice Order”). The Court granted Plaintiff leave to file an amended complaint within 21 days, and explicitly cautioned that “[a] failure to meet the 21 day deadline to file an amended complaint, or to address the issues identified in this order will result in a dismissal of this case with prejudice.” Id. at 20. At Plaintiff’s request, the Court subsequently extended that deadline to May 24, 2013. 22 Doc. No. 55. By May 31, 2013, Plaintiff had not filed an amended complaint, although he had 23 filed eight other documents subsequent to the Dismissal Without Prejudice Order. Accordingly, on 24 25 26 27 28 May 31, 2013, the Court issued an “Order Granting Final Extension of Time to File Amended Complaint.” Doc. No. 69 (“Final Extension of Time Order”). In the Final Extension of Time Order, the Court reviewed Plaintiff’s previous experience with the judicial system, and his extensive filings in this case. In recognition of Plaintiff’s pro se status, the Court granted Plaintiff 1 Case No.: 12-CV-04637-LHK ORDER SETTING DEADLINES FOR OPPOSITION TO MOTION TO DISMISS AND REPLY TO MOTION TO DISMISS 1 “a final extension of 30 days to file an amended complaint consistent with the requirements 2 outlined in the Court’s Dismissal Without Prejudice Order.” Id. at 1-2. The Final Extension of 3 Time Order emphasized that the Court “will not entertain any additional requests for extension of 4 time.” Id. at 2. 5 On June 28, 2013, Plaintiff filed a First Amended Complaint. Doc. No. 72 (“FAC”). No request for an extension of time accompanied the filing of the FAC. However, on July 8, 2013, 7 Plaintiff filed a “Request for Equitable Tolling to Allow the Disabled Plaintiff to Complete the 8 First Amended Complaint which Was Due by June 30, 2013; It Was Filed on June 28, 2013 Partly 9 Incomplete.” Doc. No. 74. In that filing, Plaintiff represented that his June 28, 2013 FAC was 10 United States District Court For the Northern District of California 6 “not totally complete,” and requested “equitable tolling” to permit him to file another amended 11 complaint. Id. The following day, July 9, 2013, Defendant Floria filed a Motion to Dismiss the 12 First Amended Complaint. Doc. No. 73. On July 22, 2013, Plaintiff filed a “Request for Equitable 13 Tolling to Answer Responses of Defendants Floria and PLM,” Doc. No. 77, which requests a 14 “reasonable amount of time” to respond to the Motion to Dismiss. The document states that 15 Plaintiff’s “reply” to this motion is due on July 30, 2013. In fact, pursuant to the Civil Local Rules, 16 Plaintiff’s opposition was due on July 23, 2013. See Civil L.R. 7-3. 17 On July 23, 2013, Plaintiff filed a notice of appeal to the Ninth Circuit, although the docket 18 entry for the notice indicated the filing fee for the appeal had not been paid. Doc. No. 78 (“Notice 19 of Appeal”). Plaintiff sought to appeal Doc. Nos. 57 and 58. Doc. No. 57 was Plaintiff’s own 20 request for an extension of time to file his First Amended Complaint. Doc. No. 58 is the Court’s 21 Order of May 16, 2013, denying Doc. No. 57. 22 On July 24, 2013, the Court denied Plaintiff’s request to further amend his complaint. Doc. 23 No. 79. The Court, however, granted Plaintiff’s request for an extension of time to respond to 24 Floria’s motion to dismiss. Id. The Court set August 7, 2013 as the deadline for Plaintiff to file his 25 response. Id. The same day, July 24, 2013, the Ninth Circuit set a briefing schedule for Plaintiff’s 26 appeal. Doc. No. 81. Plaintiff did not file his response on August 7, 2013. 27 28 2 Case No.: 12-CV-04637-LHK ORDER SETTING DEADLINES FOR OPPOSITION TO MOTION TO DISMISS AND REPLY TO MOTION TO DISMISS 1 On August 27, 2013, the Ninth Circuit dismissed Plaintiff’s appeal for lack of jurisdiction. 2 Farahani v. Floria, No. 13-16494, Doc. No. 4 (9th Cir. Aug. 27, 2013). The Court once again has 3 jurisdiction over this case. Given Plaintiff’s appeal, the Court finds that one final extension of time 4 for Plaintiff to respond to Floria’s motion to dismiss is warranted. Plaintiff shall file any 5 opposition to the motion to dismiss no later than September 18, 2013. Floria shall file any reply no 6 later than October 9, 2013. A hearing on the motion to dismiss currently is set for December 12, 7 2013. The Court will not entertain any further requests from Plaintiff for extensions of time. 8 Plaintiff has had ample opportunity to prepare his response to Floria’s motion, and any further 9 delay would be prejudicial to Floria. Failure by Plaintiff to file his response by the September 6, United States District Court For the Northern District of California 10 2013 deadline subjects Plaintiff to dismissal of the case with prejudice. 11 IT IS SO ORDERED. 12 13 14 Dated: August 28, 2013 _________________________________ LUCY H. KOH United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No.: 12-CV-04637-LHK ORDER SETTING DEADLINES FOR OPPOSITION TO MOTION TO DISMISS AND REPLY TO MOTION TO DISMISS

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