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Tyler v. Davis

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 18, 2010

ELONZA JESSE TYLER, PLAINTIFF,
v.
R. DAVIS, M.D., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER STRIKING DEFENDANT'S MOTION AS UNTIMELY

(Doc. 96)

Plaintiff Elonza Jesse Tyler, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 27, 2006. This action is set for jury trial on October 27, 2010, on Plaintiff's remaining Eighth Amendment medical care claim against Defendant Dennis Smith. On October 15, 2010, Defendant filed a motion seeking an order declaring Plaintiff a vexatious litigant and requiring Plaintiff to post bond before proceeding further in this action.

Jury trial commences in nine days. Pursuant to Local Rule 230(l), Plaintiff is entitled to twenty-one days within which to file his opposition, and Defendant is entitled to seven days thereafter to file a reply. It is extremely unlikely that Defendant's motion will be under submission prior to the trial date, and the Court will not continue the trial date to allow a motion brought at the eleventh hour by Defendant.

Defendant brings this motion (1) without explanation regarding the delay, (2) after representing in his pretrial statement that no further motions were contemplated, (3) without giving any indication during the telephonic trial confirmation hearing that a motion was being contemplated, and (4) without any attempt to show good cause for modification of the scheduling order or the pretrial order. Fed. R. Civ. P. 16; Local Rules 281(b)(13), 283. Defendant's motion is untimely and is

HEREBY ORDERED STRICKEN from the record on that ground.

IT IS SO ORDERED.

20101018

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