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Beverly v. Federal Elections Commission

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 15, 2008

ARNOLD DEWALT BEVERLY, PLAINTIFF,
v.
FEDERAL ELECTIONS COMMISSION, DEFENDANT.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER REQUIRING PLAINTIFF TO PROVIDE PROOF WITHIN TEN DAYS THAT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT WAS SERVED ON DEFENDANT

In this action Plaintiff appears to be suing the Federal Elections Commission ("FEC") for their failure to ensure sufficient public notice was given to all voters concerning Plaintiff's candidacy. Plaintiff is proceeding in this action in pro se, and Plaintiff is not utilizing the court's electronic filing system.

On December 4, 2008, Plaintiff filed a motion for summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure. The court has reviewed Plaintiff's motion, the supporting points and authorities, Plaintiff's affidavit, and the exhibit. None of these documents contain a proof of service showing that these document were properly served on Defendant FEC.

Local Rule 5-135(b) provides that parties who are not electronically served must be conventionally served, and such parties must be served in accordance with the appropriate Federal Rules of Procedure. Local Rule 5-135(c) provides:

When service of any pleading, notice, motion, or other document required to be served is made, proof of such service shall be endorsed upon or affixed to the original of the document when it is lodged or filed. Except for ex parte matters, a paper document shall not be submitted for filing unless it is accompanied by a proof of service. Proof of service shall be under penalty of perjury and shall include the date, manner and place of service.

Because Plaintiff's motion for summary judgment and accompanying documents do not contain a proof of service, they are subject to being struck. However, it may be possible that Plaintiff did serve Defendant FEC and merely forgot to attach a proof of service. As such, the court will grant Plaintiff ten days in which to provide the proof of service. If Plaintiff does not provide a proof of service within ten days, the court will strike the pending motion. If Plaintiff does provide the proof of service, the court will set Plaintiff's motion for a hearing.

Accordingly, Plaintiff is ORDERED to provide a proof of service showing that the pending motion for summary judgment and the accompanying documents were properly served on Defendant FEC.

IT IS SO ORDERED.

20081215

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