UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
October 16, 2007
JASON P. STEWART, PLAINTIFF,
CALIFORNIA DEPARTMENT OF EDUCATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Hon. John A. Houston United States District Judge
ORDER RE: PLAINTIFF'S APPLICATIONS ) [Doc. Nos. 72, 73, 81]
On September 6, 2007, Plaintiff filed a document entitled "Ex parte Application to Reissue Order for U.S. Marshal to Serve Summons & Complaint to Defendant CDE"*fn1 and a motion for an enlargement of time to file a response to Defendants RCH's and OAH's*fn2 motions to dismiss and strike pleadings ("first application"). On September 17, 2007, this Court rejected Plaintiff's responses to Defendant Rady's Children's Hospital's motion to dismiss and strike and Defendant State Office of Administrative Hearings' motion to dismiss as untimely and notified Plaintiff he must seek leave and provide a sufficient reason for not filing the responses timely. On October 10, 2007, Plaintiff filed another request for leave to file a response to Defendant RCH's motion to dismiss and strike ("second application"). After a review of the documents, the Court GRANTS Plaintiff's second application for leave to file a response to Defendant RCH's motion to dismiss, DENIES Plaintiff's first application for additional time to file responses to RCH's and OAH's motions and DENIES Plaintiff's application to direct service.
I. Application to Direct Service Upon California Department of Education
Without discussion or authority cited in support, Plaintiff asks the Court to direct the United States Marshal to serve the summons and complaint on Defendant CDE at an address he provides. Because Plaintiff fails to provide any argument in support for directing service of summons of process on Defendant CDE, there is insufficient cause for granting his request. Accordingly, the application to issue an order directing service is DENIED WITHOUT PREJUDICE.*fn3
II. First Application for Enlargement of Time
Plaintiff seeks additional time to file oppositions to motions filed by Defendant RCH and OAH. This Court previously provided Plaintiff an extension of time to September 4, 2007 to file a response to Defendant RCH's motion to dismiss and to strike the complaint. Plaintiff was required to file a response to Defendant OAH's motion to dismiss and motion to strike on or before September 4, 2007. Plaintiff fails to provide any explanation for why he was unable to file a response to the motions by the deadline. As such, the Court is unable to determine whether the request for additional time is reasonable and the application for an enlargement of time is DENIED WITHOUT PREJUDICE.*fn4
III. Second Application for Enlargement of Time
Plaintiff asserts the volume of documents required to prove his case and the complexity of the case prevented him from filing a response to RCH's motions timely. He maintains he could not afford to duplicate hundreds of pages of documents and he was responding to Defendant OAH's motion to dismiss. Plaintiff does not explain why the duplication of "hundreds of pages of documents" is necessary to respond to a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) in light of the fact a court may only consider documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested and matters of which a court takes judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Nevertheless, the Court finds Plaintiff's request for additional time to file a response to Defendant RCH's motion is reasonable.
Accordingly, IT IS HEREBY ORDERED:
1. Plaintiff's application for an order to serve the summons and complaint on Defendant CDE at the address provided is DENIED WITHOUT PREJUDICE.
2. Plaintiff's first application to for enlargement of time to file a response to Defendant RCH's motion and Defendant OAH's motion is DENIED WITHOUT PREJUDICE.
3. Plaintiff's second application for additional time to file a response to Defendant RCH's motion is GRANTED. Plaintiff shall file a response on or before October 26, 2007. If Defendant Rady's Children's Hospital wishes to file a reply, the reply shall be filed on or before November 2, 2007.