Porter v. Shumake et al
ORDER directing Plaintiff to file any response in opposition to Defendants' 43 MOTION to Dismiss or to inform the Court of his decision not to oppose within fourteen (14) days of the date of this Order. The Clerk is hereby instructed to attach a copy of Fed.R.Civ.P. 41 and 12 to the copy of this Order that is served on the Plaintiff. Signed by Magistrate Judge R. Stan Baker on 12/30/2016. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:15-cv-113
RONNIE SHUMAKE; CO II DOTTSON; CO
II SAPP; CO II CAMBELL,
This matter is before the Court on Defendants’ Motion to Extend Discovery. (Doc. 42.)
After careful consideration and for good cause shown, the Court GRANTS Defendants’ Motion
THEREFORE, IT IS HEREBY ORDERED that discovery is extended to and
including February 13, 2017, and the deadline for filing motions is extended to and including
March 14, 2017.
Additionally, the Court provides instructions to Plaintiff regarding Defendant Cambell’s
Motion to Dismiss, (doc. 43), 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
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, the Court ORDERS Plaintiff to file any response in opposition to
Defendants’ motion for a dismissal or to inform the Court of his decision not to oppose
Defendants’ Motion within fourteen (14) 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 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
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
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.
SO ORDERED, this 30th day of December, 2016.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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