Myton v. Deal et al

Filing 24

ORDER re 23 MOTION to Dismiss. 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. Signed by Magistrate Judge Benjamin W. Cheesbro on 02/18/2021. (Attachments: # 1 FRCP 12, # 2 FRCP 41) (MG)

Case 6:19-cv-00032-JRH-BWC Document 24 Filed 02/18/21 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
ABRAHAM JUDAH MYTON,
Plaintiff,

CIVIL ACTION NO.: 6:19-cv-32

v.
LT. TERRY MOYE; and LT. MICHAEL
GOETTIE,1
Defendants.
ORDER
This matter is before the Court on Defendants’ Motion to Dismiss. Doc. 23. A motion to
dismiss is dispositive in nature, meaning 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.2
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.

1

The Court DIRECTS the Clerk of Court to amend the docket and record in this case to reflect the
proper spelling of Defendant Goettie’s name. Doc. 23 at 1 n.1.
2

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 6:19-cv-00032-JRH-BWC Document 24 Filed 02/18/21 Page 2 of 2

7.5 (“Failure to respond . . . shall indicate that there is no opposition to a motion.”). 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 18th day of February, 2021.

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

2