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Harper v. Costa

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


March 20, 2009

DANIEL HARPER, PLAINTIFF,
v.
SGT. COSTA, ET AL., DEFENDANTS.

ORDER

On December 8, 2008, defendants Costa and Mendes filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff did not oppose the motion, so on January 26, 2009, the court ordered plaintiff to file an opposition, if any, to defendants' motion to dismiss within twenty days. Plaintiff still has not opposed the motion. He has, however, filed several premature discovery motions.

Specifically, plaintiff has filed a motion to extend the time for discovery, a motion for an accelerated pretrial discovery conference, and a motion for a protective order. Plaintiff is advised that if defendants' motion to dismiss is denied defendants will file an answer, and the court will issue a discovery order as well as a scheduling order in this matter. In addition, plaintiff is advised that in his motions he references a number of court orders that have not been issued in this case as well as a number of events that have not yet taken place. Plaintiff should review his motions to be sure he has submitted them in the proper action. As noted above, in this case, plaintiff is at this point only obligated to file an opposition to defendants' motion to dismiss. The court will grant plaintiff a final thirty days to oppose the motion.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's January 26, 2009 motion to extend the time for discovery (Doc. No. 29), motion for an accelerated pretrial discovery conference (Doc. No. 30), and motion for a protective order (Doc. No. 31) are denied as premature; and

2. Within thirty days of the date of this order, plaintiff shall file an opposition, if any, to defendants' motion to dismiss. Failure to file an opposition will be deemed as a statement of non-opposition and will result in a recommendation that this action be dismissed pursuant Federal Rule of Civil Procedure 41(b). In the alternative, if plaintiff no longer wishes to proceed with this action, he may file a request to dismiss this action without prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.

20090320

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