Filed: Dec. 23, 2014
Latest Update: Dec. 23, 2014
Summary: ORDER JAMES E. GRAHAM, Magistrate Judge. Plaintiff, proceeding pro se, filed her complaint on October 31, 2014. Defendant has moved for a dismissal of Plaintiffs claim. The Court is reluctant to rule on said motion without receiving a response from the Plaintiff or insuring that Plaintiff is advised of the potential ramifications caused by her failure to respond. Once such a motion is filed, the opponent should be afforded a reasonable opportunity to respond to or oppose such a motion. This
Summary: ORDER JAMES E. GRAHAM, Magistrate Judge. Plaintiff, proceeding pro se, filed her complaint on October 31, 2014. Defendant has moved for a dismissal of Plaintiffs claim. The Court is reluctant to rule on said motion without receiving a response from the Plaintiff or insuring that Plaintiff is advised of the potential ramifications caused by her failure to respond. Once such a motion is filed, the opponent should be afforded a reasonable opportunity to respond to or oppose such a motion. This C..
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ORDER
JAMES E. GRAHAM, Magistrate Judge.
Plaintiff, proceeding pro se, filed her complaint on October 31, 2014. Defendant has moved for a dismissal of Plaintiffs claim.
The Court is reluctant to rule on said motion without receiving a response from the Plaintiff or insuring that Plaintiff is advised of the potential ramifications caused by her failure to respond. Once such a motion 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). 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 Corn. 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 anyway 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 objections to the Defendant's motion for a dismissal, or to otherwise inform the court of her decision not to object to Defendant's 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 Defendant's motion, the Court will determine that there is no opposition to the motion. See Local Rule 7.5. In order to assure that Plaintiffs 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 of Rule 41, FED. R. Civ. P., as well as Rule 12, FED. R. Civ. P., to the copy of this Order that is served on the Plaintiff.
SO ORDERED.
