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Devore v. California Department of Justice Corrections and Rehabilitation, 2:18-cv-02487 KJM AC PS. (2019)

Court: District Court, E.D. California Number: infdco20191204645 Visitors: 6
Filed: Dec. 03, 2019
Latest Update: Dec. 03, 2019
Summary: ORDER ALLISON CLAIRE , Magistrate Judge . Plaintiff is proceeding in this action pro se. The action was accordingly referred to the undersigned by Local Rule 302(c)(21). On October 18, 2019, defendant filed a motion to dismiss. ECF No. 31. Plaintiff did not timely respond to the motion, and the court continued the hearing to December 11, 2019, cautioning plaintiff that failure to submit a timely response would result in dismissal for failure to prosecute. ECF No. 33. Plaintiff's opposition
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ORDER

Plaintiff is proceeding in this action pro se. The action was accordingly referred to the undersigned by Local Rule 302(c)(21). On October 18, 2019, defendant filed a motion to dismiss. ECF No. 31. Plaintiff did not timely respond to the motion, and the court continued the hearing to December 11, 2019, cautioning plaintiff that failure to submit a timely response would result in dismissal for failure to prosecute. ECF No. 33. Plaintiff's opposition was due November 27, 2019. On that date, plaintiff sent an e-mail to the undersigned's courtroom deputy stating that the process server she initially retained was unable to supply the court with her opposition briefing, but that she hired a new process server and was confident that the opposition would be filed that day. Nothing was filed until December 2, 2019, when plaintiff filed a motion to submit a late response. ECF No. 34. Plaintiff also filed the proposed response. ECF No. 35.

As a preliminary matter, the court notes that plaintiff's ex parte communication with the court was not sufficient to satisfy the court's order at ECF No. 33; an opposition or statement of non-opposition must be filed on the record through the Clerk of Court in accordance with Fed. R. Civ. P. 5 and Local Rule 133(d)(1) ("Except as expressly authorized in advance by the Court, all paper documents presented for filing or lodging shall be delivered to the Clerk who will, when appropriate, deliver the documents to the Judge or Magistrate Judge after docketing."). Documents directly e-mailed to chambers will not be filed and will not be considered proper prosecution of a case. See Local Rule 133(e)(4) (stating that documents directly faxed to chambers will not be filed on the docket); Local Rule 134(a) (stating that emailing a document to the court does not constitute filing).

Further, plaintiff is encouraged to read the Local Rules and Federal Rules of Civil Procedure with regard to proper filing and service of documents other than initial pleadings. No process server is necessary to file or serve a response to a motion. Pro se parties who are not e-filers use "conventional filing" which is defined in the Local Rules as "the filing of a document with the Clerk of Court in paper format. Documents filed conventionally may be filed via mail or in person." Local Rule 101 ("Definitions") (emphasis added), see also Fed. R. Civ. P. 5.

Local Rule 230(c) provides that opposition to the granting of a motion must be filed fourteen days preceding the noticed hearing date. The Local Rule further provides that "[n]o party will be entitled to be heard in opposition to a motion at oral arguments if written opposition to the motion has not been timely filed by that party." In addition, Local Rule 230(j) provides that failure to appear may be deemed withdrawal of opposition to the motion or may result in sanctions. Finally, Local Rule 110 provides that failure to comply with the Local Rules "may be grounds for imposition of any and all sanctions authorized by statute or Rule or within the inherent power of the Court."

In light of plaintiff's pro se status, the court will GRANT her motion at ECF No. 34 and accept the late filing at ECF No. 35. In order to give defendant a full and fair opportunity to file a reply brief, the court will once again re-set the hearing date. Appearance at the hearing on this or on any matter may be telephonic, in accordance with the undersigned's standing orders which are located on the court's website. Requests for telephonic appearance must be made to courtroom deputy Valerie Callen at (916) 930-4199 or vcallen@caed.uscourts.gov, at least two days prior to the hearing date.

Good cause appearing, IT IS HEREBY ORDERED that:

1. Plaintiff's motion at ECF No. 34 is GRANTED and the opposition at ECF No. 35 is accepted; 2. The motion hearing date of December 11, 2019 is CONTINUED to December 18, 2019, at 10:00 a.m. in Courtroom No. 26, with defendant's reply brief due December 11, 2019.
Source:  Leagle

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