Nickerson v. Shores et al

Filing 9

ORDER directing Plaintiff to file a response to 5 MOTION to Dismiss within 14 days of the date of this order. Clerk is directed to provide a copy of FRCP 12 and FRCP 41 to Plaintiff. Signed by Magistrate Judge Benjamin W. Cheesbro on 1/8/21. (Attachments: # 1 FRCP 12, # 2 FRCP 41) (slt) Modified on 1/8/2021 (slt).

Case 4:20-cv-00311-WTM-BWC Document 9 Filed 01/08/21 Page 1 of 2 FILED
John E. Triplett, Acting Clerk
United States District Court

By STaylor at 3:12 pm, Jan 08, 2021

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

WAYNE E. NICKERSON,
Plaintiff,

CIVIL ACTION NO.: 4:20-cv-311

v.
CHIEF RAYMOND SHORES: CAPTAIN
RAYMOND FOWLER; and CHRIS
LOWELL,
Defendants.

ORDER
This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Complaint.
Doc. 5. A motion to dismiss is dispositive in nature, meaning that granting a motion to dismiss
could result in the dismissal of individual claims or an entire action. Consequently, the Court is
reluctant to rule on the Motion to Dismiss without providing Plaintiff an opportunity to respond
or advising Plaintiff of the consequences for failing to respond. 1
Accordingly, the Court ORDERS Plaintiff to file a response either opposing or
indicating his lack of opposition to Defendants’ Motion to Dismiss within 14 days of the date of
this Order. If Plaintiff fails to file a timely response, the Court will presume Plaintiff does
not oppose the Motion and may dismiss individual claims or the entire action. See Local R.
7.5 (“Failure to respond . . . shall indicate that there is no opposition to a motion.”).

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Granting a motion to dismiss without affording a plaintiff either notice or an opportunity to be
heard is disfavored. Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336–37 (11th Cir. 2011); see also Neitzke
v. Williams, 490 U.S. 319, 329–30 (1989) (A notice of a motion to dismiss “alert[s plaintiff] to the legal
theory underlying the defendant’s challenge” and enables him to meaningfully respond “by opposing the
motion to dismiss on legal grounds or by clarifying his factual allegations so as to conform with the
requirements of a valid legal cause of action.”).

Case 4:20-cv-00311-WTM-BWC Document 9 Filed 01/08/21 Page 2 of 2

To ensure Plaintiff’s response is made with fair notice of the requirements of the Federal
Rules of Civil Procedure regarding motions to dismiss generally, the Court DIRECTS the Clerk
of Court to provide a copy of Federal Rules of Civil Procedure 12 and 41 when serving this
Order upon Plaintiff.
SO ORDERED, this 8th day of January, 2021.

____________________________________
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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