IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 18, 2011
BRENT ALLEN WINTERS, ET AL., PLAINTIFFS,
DELORES JORDAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before the court are two ex parte applications filed by defendants David Silber and Delores Jordan, which seek leave to file motions to dismiss plaintiffs' Third Amended Complaint or for a more definite statement pursuant to Federal Rule of Civil Procedure 12. (Dkt. Nos. 253, 254.) The proposed motions, which notice a hearing date of March 31, 2011, are attached to the applications. It does not appear that Mr. Silber, who is a named defendant and is also representing Ms. Jordan,*fn1 served plaintiffs with the pending ex parte applications.
Briefly stated, Mr. Silber declares that due to his excusable neglect and trying personal circumstances over the last year, he neglected to actually file his and Ms. Jordan's respective responsive motions in or around November 2009. (See Silber Decl. ¶¶ 5-6, 7.) Apparently, Mr. Silber drafted those motions in 2009, did not actually file those motions, and just recently realized his error. (Id. ¶¶ 3, 5, 7.) David Silber also appeared at the February 17, 2011 hearing on plaintiffs' motion for default judgment (Dkt. No. 189) to explain the same. Plaintiffs failed to appear at that hearing.*fn2
IT IS HEREBY ORDERED that:
1. The ex parte applications for leave to file responsive motions pursuant to Federal Rule of Civil Procedure 12, filed by defendants David Silber and Delores Jordan (Dkt. Nos. 253-54), are granted.
2. The motions to dismiss or for a more definite statement submitted by defendants David Silber and Delores Jordan, which are attached to the ex parte applications, are deemed filed on February 17, 2011. The hearing on Mr. Silber's and Ms. Jordan's motions to dismiss will take place on March 31, 2011, at 10:00 a.m., in Courtroom 25, subject to the motion being submitted on the briefs without argument pursuant to Local Rule 230(g). Plaintiffs may file written oppositions or statements of non-opposition consistent with Local Rule 230.
3. The granting of the ex parte applications and the resulting portion of this order deeming the responsive motions filed on February 17, 2011, is without prejudice to the plaintiffs arguing that leave has been improvidently granted by the court. Plaintiffs must state any such arguments in their written oppositions to Mr. Silber's and Ms. Jordan's motions.
4. Mr. Silber shall serve plaintiffs with the ex parte applications, this order, and the moving papers in support of the two responsive motions within seven days of the date of this order. After such service, Mr. Silber shall file with the court a brief declaration attesting that he timely served the documents identified above on plaintiffs.
IT IS SO ORDERED.