Bethea v. Evangelical Christian Credit Union

Filing 40

ORDER directing Plaintiff to file any objections to 27 MOTION to Dismiss; or otherwise inform the court of his decision not to object to Defendants motion within twenty-one days of the date of this Order. The Clerk of Court is instructed to attach a copy of the Rule 41, FED. R. CIV. P., as well as Rule 12, FED. R. CIV. P., to the copy of this Order that is served on the Plaintiff. Signed by Magistrate Judge James E. Graham on 7/15/2011. (csr) Text Modified on 7/15/2011 (csr).

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGfA-_Lc.c
BRUNSWICK DIVISION
OF GA.

JAMES E, BETHEA, JR.,
Pastor, True Deliverance
Tabernacle Church,
Plaintiff,

CIVIL ACTION NO.: CV2I0-191

vs.
EVANGELICAL CHRISTIAN
CREDIT UNION and GEORGIA
POWER COMPANY,
Defendants
ORDER
Plaintiff, proceed pro Se, filed this complaint on December 17, 2010. Defendant
Georgia Power Company has moved for a dismissal of Plaintiffs claim.
The Court is reluctant to rule on said motion without receiving a response from the
Plaintiff or insuring that Plaintiff is advised of the potential ramifications caused by his
failure to respond. Once such a motion is filed, the opponent should be afforded a
reasonable opportunity to respond to or oppose such a motion. Although it is well past the
time generally afforded a party to make such a response, this Court must consider that the
Plaintiff in this case is a pro se litigant. Haines v. Kerner, 404 U. S. 519, 520 (1972).
When a defendant or defendants file a motion to dismiss, the court must construe the
complaint liberally in favor of plaintiff, taking all facts alleged by the plaintiff as true. Miree
v. Dekaib County, 433 U.S. 25, 27 n.2 (1977); Blum v. Morgan Guar. Trust Co., 709 F.2d
1463, 1466 (11th Cir. 1983). The Supreme Court in Conley v. Gibson, 355 U.S. 41, 45,
46 (1957) stated that:
AO 72A
(Rev. 8/82)

[ i ] n appraising the sufficiency of the complaint we follow, of
course, the accepted rule that a complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.
The granting of a motion to dismiss is disfavored and rare. Sosa v. Coleman, 646
F.2d 991, 993 (5th Cir. Unit B June 1981). 1 Furthermore, a claim, especially one presented
by a pro so litigant, should not be dismissed unless it appears that the plaintiff can prove
no facts which would entitle him to relief. Dykes v. Hosemann, 743 F.2d 1488, 1499 (11th
Cir. 1984). Furthermore a local rule, such as Local Rule 7.5 of this court, 2 should not in
any way serve "as a basis for dismissing a pro se civil rights complaint where, as here,
there is nothing to indicate plaintiff ever was made aware of it prior to dismissal." Mitchell
v. Inman, 682 F.2d 886, 887 (11th Cir. 1982).
Accordingly, Plaintiff is hereby ORDERED to file any objections to said Defendant's
motion for a dismissal, or to otherwise inform the court of his decision not to object to
Defendant's motion within twenty-one (21) days of the date of this Order. See Griffith v.
Wainriciht, 772 F.2d 822, 825 (11th Cir. 1985)(espousing importance of strict adherence
to notice requirements in pro so motions for summary judgment). Should Plaintiff not
timely respond to Defendant's motion, the Court will determine that there is no opposition
to the motion. See Local Rule 7.5. In order to assure that Plaintiffs response is made with
fair notice of the requirements of the Federal Rules of Civil Procedure regarding motions
to dismiss, generally, and motions to dismiss for failure to state a claim upon which relief
may be granted, the Clerk of Court is hereby instructed to attach a copy of Rule 41, FED.

1
Decisions of the former Fifth Circuit, Unit B, rendered after September 31, 1981, are binding
precedent in this Circuit. Stein v. Re ynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982).
2

Local Rule 7.5 states:
Unless.. . the assigned judge prescribes otherwise, each party opposing
a motion shall serve and file a response within fourteen (14) days of
service of the motion, except that in cases of motions for summary
judgment the time shall be twenty-one (21) days after service of the
motion. Failure to res pond shall indicate that there is no o pposition to a
motion. (emphasis added).

AO 72A
(Rev. /82)

R. Civ. P., as well as Rule 12, FED. R. Cu. P., to the copy of this Order that is served on
the Plaintiff.
SO ORDERED, this

/1,

of July, 2011.

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O 72A
Rev. 8/82)