Murphy v. City of Brunswick, Georgia et al

Filing 11

ORDER granting 7 Motion to Stay Proceedings filed on April 13, 2015. Plaintiff is Ordered to file any response in opposition to the Defendants' motion for a dismissal or to inform the court of her decision not to oppose Defendants' moti on within twenty-one days of the date of this Order. The Clerk of Court is instructed to attach a copy of Federal Rules of Civil Procedure 41 and 12 to the copy of this Order that is served on the Plaintiff. Signed by Magistrate Judge R. Stan Baker on 4/27/2015. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

YVONNE L. MURPHY,
Plaintiff,

CIVIL ACTION NO.: CV215-029

v.
CITY OF BRUNSWICK, GEORGIA; and
OFFICER CHRISTINE R. DHEEL,
Individually and in her Official Capacity,
Defendants.

ORDER
This matter is before the Court on Defendant’s Motion to Stay Proceedings filed on
April 13, 2015. (Doc. 7.) After careful consideration, Defendant’s Motion is GRANTED.
Additionally, the Court provides directives to Plaintiff regarding Defendants’ Motion to Dismiss
which she is urged to follow.
Plaintiff has filed a complaint brought pursuant to 42 U.S.C. § 1983. (Doc. 1) On
March 31, 2015, Defendants City of Brunswick, Georgia and Christine R. Dheel filed a preanswer Motion to Dismiss. (Doc. 6) The Court finds that good cause exists to stay this case
until such time as a ruling is made on Defendants’ Motion. Specifically, a ruling on Defendants’
Motion to Dismiss before the commencement of discovery may save the parties time and
resources by clarifying what issues, if any, the parties will need to address in discovery.
Moreover, the Court finds that no real prejudice will accrue to the Parties if Defendants’ request
for a stay is granted.

THEREFORE, IT IS HEREBY ORDERED that all proceedings, including discovery, are
stayed pending a ruling by the Court on Defendants’ Motion to Dismiss. This ruling does not
affect Plaintiff’s obligation to file a response to Defendants’ Motion to Dismiss.
A motion to dismiss is dispositive in nature, meaning that the granting of a motion to
dismiss results in the dismissal of individual claims or an entire action. Consequently, the Court
is reluctant to rule on the Motion to Dismiss without receiving a response from the Plaintiff or
ensuring that Plaintiff is advised of the potential ramifications caused by her failure to respond.
Once a motion to dismiss 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). Additionally, 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, 1336-37 (11th
Cir. 2011). A local rule, such as Local Rule 7.5 of this court, 1 should not serve as a basis for
dismissing a pro se complaint where, as here, there is nothing to confirm that plaintiff ever was
made aware of the Motion and its dispositive effect prior to dismissal. Pierce v. City of Miami,
176 F. App’x 12, 14 (11th Cir. 2006).
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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).

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Accordingly, Plaintiff is hereby ORDERED to file any response in opposition to the
Defendants’ motion for a dismissal or to inform the court of her decision not to oppose
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 Defendants’ motion, the Court will determine that Plaintiff
does not oppose the motion. See Local Rule 7.5.
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 Federal Rules of Civil Procedure 41 and 12 to the copy of this Order
that is served on the Plaintiff.
SO ORDERED, this 27th day of April, 2015.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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