Lumb v. Border Patrol Supervisor Pete Burgos et al

Filing 12

ORDER Requiring Response and Vacating Hearing on Motion to Dismiss 11 . Opposition due by 11/18/2016, Reply due by 11/23/2016. The hearing currently on calendar for 12/12/2016 is vacated. Signed by Judge Larry Alan Burns on 12/14/16.(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DONALD LUMB,

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CASE NO. 15cv2623-LAB (MDD)
Plaintiff,

ORDER REQUIRING RESPONSE;
AND

vs.
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ORDER VACATING HEARING ON
MOTION TO DISMISS

BORDER PATROL SUPERVISOR PETE
BURGOS, et al.,

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Defendants.

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On November 10, Defendants moved to dismiss for failure to serve. They filed a brief

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and straightforward noticed motion, with a hearing date of December 12, 2016. The four-

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page motion is supported by a two-page declaration, and presents a single simple issue,

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arguing that Defendants have yet to be properly served. In view of this, as well as the case’s

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age and Plaintiff’s delays in serving Defendants, the Court believes that full briefing and a

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hearing on this issue is unnecessary and inappropriate. See Fed. R. Civ. P. 1 (directing

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courts to apply and administer the rules to secure the speedy determination of actions); Civil

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Local Rule 7.1(d)(1) (providing that judges may, in their discretion, decide a motion without

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oral argument).

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The Court has reviewed the motion and it appears to be meritorious. Plaintiff Donald

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Lumb is therefore ORDERED to file a brief in opposition by November 18, 2016. His brief

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must not exceed five pages, not counting any attached or lodged materials. His opposition
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15cv2623

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must either show that he has properly served Defendants as ordered, or else that there is

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good cause for his repeated failures to obey the Court’s orders.

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It should be noted that this case has been pending for nearly a year, and Defendants

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have yet to be served. In view of Lumb’s lengthy delays and earlier failures to serve (see

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Docket no. 6 at 2:5–18 (discussing Lumb’s neglect of the case)), general appeals for more

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time will not show good cause. See Fed. R. Civ. P. 4(m) (establishing “good cause” as the

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standard); see also Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (setting forth

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factors district courts may consider when making discretionary determinations to extend time

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to serve). If Lumb files a response, Defendants may file a reply brief, subject to the same

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page limits, by November 23, 2016. After the required briefing has been filed, the matter

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will be deemed submitted on the papers. If Lumb fails to file an opposition when due,

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or if his opposition fails to show why the motion should be denied, this action will be

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dismissed without prejudice for failure to serve.

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The hearing currently on calendar for Monday, December 12, 2016 is VACATED.

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IT IS SO ORDERED.

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DATED: November 14, 2016

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HONORABLE LARRY ALAN BURNS
United States District Judge

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15cv2623