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Winters v. Jordan

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


August 25, 2010

BRENT ALLEN WINTERS, ET AL., PLAINTIFFS,
v.
DELORES JORDAN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

On July 6, 2010, defendant Dewey Harpainter ("Harpainter") filed a motion to dismiss plaintiffs' Third Amended Complaint with respect to the claims against him, and he noticed his motion for a hearing to take place on August 12, 2010. (Dkt. No. 130.) Plaintiffs were obligated to file and serve a written opposition or statement of non-opposition at least fourteen days prior to the noticed hearing date, which means such a submission was due on or before July 29, 2010. See E. Dist. Local Rule 230(c). Plaintiffs did not file a timely opposition or statement of non-opposition,*fn1 and this court entered an order to show cause ("OSC") in writing why plaintiffs' claims against Harpainter should not be dismissed and why plaintiffs should not be sanctioned. (Dkt. No. 149.)

Plaintiffs filed a timely response to the OSC, which indicates that defendant Harpainter might have applied insufficient postage when mailing his moving papers to plaintiffs, and that this might have caused plaintiffs' delay in filing an opposition. (Dkt. No. 164.) Plaintiffs filed their opposition to Harpainter's motion on August 6, 2010. (Dkt. No. 150.) Out of an abundance of caution, the undersigned will discharge the OSC and deem plaintiffs' opposition timely filed.*fn2

Plaintiffs also "move the court to refer Attorney Harpainter for investigation and possible criminal prosecution," or for sanctions. These requests, which have not been brought through a noticed motion, will be denied.

For the reasons stated above, IT IS HEREBY ORDERED that:

1. The OSC entered August 4, 2010 (Dkt. No. 149), is discharged.

2. Plaintiffs' written opposition (Dkt. No. 150) filed August 6, 2010, is deemed timely filed.

3. As noted in the OSC, defendant Harpainter may file and serve a reply to plaintiffs' opposition, if needed, on or before September 2, 2010.

4. As noted in the OSC, defendant Harpainter's motion will be heard before the undersigned on September 9, 2010, at 10:00 a.m, absent any subsequent continuance of that hearing date or submission of the motion on the briefs and record.

5. Plaintiffs' improperly brought motions for miscellaneous relief as to defendant Harpainter are denied.

IT IS SO ORDERED.


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