Tabb v. Bryson et al

Filing 58

ORDER that Plaintiff file any response in opposition to the Defendants' 57 First MOTION to Dismiss or to inform the court of his decision not to oppose within twenty-one (21) days of the date of this Order. The Clerk is hereby instructed to attach a copy of Federal Rule 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 4/11/2016. (ca)

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

JOSEPH TABB,
Plaintiff,

CIVIL ACTION NO.: 5:15-cv-58

v.
HOMER BRYSON; TOM GRAMIAK;
NATHAN BROOKS; WILLIAM
STEEDLEY; KIMBERLY LOWE; EDWINA
JOHNSON; JUANDA CRAWFORD; JANE
DOE; MR. FERREL; and JANE DOE 2,
Defendants.

ORDER
This matter is before the Court on Defendants’ Motion to Dismiss filed on March 28,
2016. (Doc. 57.) The Court provides instructions to Plaintiff regarding Defendants’ Motion to
Dismiss, which Plaintiff is urged to follow.
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 his 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 in any way 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 response in opposition to the
Defendants’ motion for a dismissal or to inform the court of his 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 cannot 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 to 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.
1

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).

SO ORDERED, this 11th day of April, 2016.

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