The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S EX PARTE MOTION FOR ORDER COMMANDING HEARING ATTENDANCE (Document 171) ORDER MOVING HEARING DATE AND SETTING BRIEFING SCHEDULE CHANGE OF ADDRESS FOR PLAINTIFF JAMES S. POBURSKY only
Plaintiffs James S. and Wanda Pobursky ("Plaintiffs") are proceeding pro se in this action. Defendants' motion for involuntary dismissal is currently pending and set for hearing on March 12, 2010.
On February 8, 2010, Plaintiff James Pobursky filed an ex parte motion for an order commanding hearing attendance. According to the motion, Mr. Pobursky is incarcerated in the Madera County Jail.
Defendants filed a statement of "conditional non-opposition" on February 9, 2010. Defendants do not object to an arrangement that would allow Mr. Pobursky to appear by telephone, but contend that the hearing should go forward as scheduled regardless of whether Mr. Pobursky is able to attend.
As an initial matter, this Court will not dismiss this action without affording Mr. Pobursky an opportunity to be heard. Defendants contend that Ms. Pobursky, who is not incarcerated, "should be able to adequately represent the interests of Mr. Pobursky since the matters to be considered at the hearing relate equally to both Plaintiffs." Contrary to Defendants' belief, Ms. Pobursky, as a pro se Plaintiff, cannot represent Mr. Pobursky in this action.
In any event, the Court has confirmed with the Madera County Jail that Mr. Pobursky can appear by telephone at the hearing. Mr. Pobursky's incaration, however, creates unavoidable delays in sending and receiving mail and it is therefore necessary to extend dates to ensure that Mr. Pobursky has an opportunity to oppose the motion. Defendants' contention that Plaintiff will have "plenty of time to gather the pertinent documents and prepare and opposition" by February 26, 2010, is optimistic given the common delays that exist when a party is incarcerated. While the Court recognizes that Defendants do not want to delay this matter further, the Court simply cannot proceed without assuring that Mr. Pobursky receives his due process right to be heard.
Therefore, the Court CONTINUES the hearing on Defendants' motion for involuntary dismissal to March 26, 2010, at 9:00 a.m. in Courtroom 9. Plaintiffs' opposition SHALL be due on or before March 12, 2010, and Defendants' reply, if any, SHALL be due on or before March 19, 2010.
The Court will arrange for a telephonic appearance by Mr. Pobursky.
The Court also notes that Mr. Pobursky referred to his address in the Madera County Jail as an "extra new address." The Court therefore DIRECTS the Clerk fo Court to add this address as an address for service for Mr. Pobursky:
James Sanford Pobursky Madera County Jail #162696 14191 Road 28 Room #40 Madera, CA 93638
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