McRae v. Perry et al
Filing
207
ORDER directing Plaintiff to file any objections to Defendants' 205 MOTION to Dismiss Plaintiff's Third Amended Complaint, or to otherwise inform the court of her decision not to object to Defendants' motion within twenty-one day s of the date of this Order. The Clerk of Court 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 4/18/2013. (csr)
F I LED
~~ JCT COURT
IN THE UNITED STATES DISTRICT
i
FOR THE SOUTHERN DISTRICT OF t iA
BRUNSWICK DIVISION
?3 fPR is
MARGIE McRAE,
Plaintiff,
OlY.
,.
io 22
CLEn1_
t.1F
:
CIVIL ACTION NO.: CV2II-193
vs.
EDWARD OSTERVALD;
BRUNSWICK-GLYNN COUNTY
JOINT WATER AND SEWER
COMMISSION; and KEITH MORGAN,
Defendants.
ORDER
Plaintiff, proceeding pro Se, filed this complaint on November 15,2011. Defendants
Brunswick-Glynn County Joint Water and Sewer Commission and Keith Morgan, Director,
have 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 sel 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. Twombly, 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. Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336-
AU 72A
(Rev. 8/82)
37(11th Cir. 2011). A local rule, such as Local Rule 7.5 of this court,' should not in any
way serve as a basis for dismissing a pro so 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 Defendants'
motion for a dismissal, or to otherwise inform the court of her decision not to object to
Defendants' 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 Defendants' 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. 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
Jt
day of April, 2013.
ES E. GRAHAM
(ITED 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),
2
AU 72A
(Rev. 8/82)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?