McRae v. Perry et al

Filing 198

ORDER directing Plaintiff to file any objections to 193 Defendant's MOTION to Dismiss Third Amended Complaint, or to otherwise inform the court of her decision not to object to motion for dismissal within twenty-one days from the date of this Order. The Clerk is instructed to attach a copy of 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 3/25/2013. (csr)

IN THE UNITED STATES DISTRICT COURT FILED
FOR THE SOUTHERN DISTRICT OF GEQIAS-.1
BRUNSWICK DIVISION
!ffl tPfl 25 A 10:

MARGIE McRAE,
Plaintiff,

CLD'

vs.

-çc

CIVIL ACTION NO.: CV2II-193

EDWARD OSTERVALD
and DOES 1-30,
Defendants.

QRDER
Plaintiff, proceeding prose, filed this complaint on November 15, 2011. Defendant
Glynn County has moved for a dismissal of Plaintiffs Third Amended Complaint.
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 her
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. 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,
even if doubtful in fact. Bell Atlantic Corp. v. Twomljy, 550 U.S. 554, 555 (2007).
The granting of a motion to dismiss without affording the plaintiff either notice or any
opportunity to be heard is disfavored. Iazoe v. Airbus S.A.S., 631 F.3d 1321, 1336-37

AO 72A
(Rev. 8/82)

(11th Cir. 2011). A local rule, such as Local Rule 7.5 of this court,' should not in anyway
serve as a basis for dismissing a pro se complaint where, as here, there is nothing to
indicate plaintiff ever was made aware of it prior to dismissal. Pierce v. City of Miami, 176
F. App'x 12, 14(11th Cir. 2006).
Accordingly, Plaintiff is hereby ORDERED to file any objections to said Defendant's
motion for a dismissal, or to otherwise inform the court of her decision not to object to
Ostervold's motion within twenty-one (21) days of the date of this Order. Tazoe, 631 F.3d
at 1336 (advising that a court can not dismiss an action without employing a fair
procedure). Should Plaintiff not timely respond to said 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 Plaintiff's 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. R. Civ. P., as well as Rule 12, FED. R. Civ. P.,
to the copy of this Order that is served on the Plaintiff.

SO ORDERED, this Zrday of March, 2013.

JAES E. GRAHAM
UflTED STATES MAGISTRATE JUDGE

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 respond shall indicate that there is no
opposition to a motion. (emphasis added).
AO 72A
(Rev. 8/82)