IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 23, 2012
JOHN L. HARRIS III, PLAINTIFF,
KAMALA HARRIS, ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, AS IN HER OFFICIAL CAPACITY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER DISCHARGING OSC
Plaintiff John L. Harris III ("plaintiff") is proceeding without counsel in this action.*fn1 Defendants' motion to dismiss plaintiff's Second Amended Complaint pursuant to Federal Rules of Civil Procedure 8(a) and 12(b)(6) was set to be heard on January 12, 2012. (Mot. to Dismiss, Dkt. No. 21; Minute Order, Dkt. No. 27 (resetting hearing date for January 12, 2012).) Plaintiff filed a written opposition ("Opposition") on December 13, 2011. (Oppo., Dkt. No. 23.) In his Opposition, plaintiff specifically requested oral argument on the pending motion to dismiss. (Id. at 1 ("Oral Argunent [sic] Requested").)
The court heard this matter on its law and motion calendar on January 12, 2012.
Attorney Christine Mersten appeared on behalf of defendants. When plaintiff did not appear at the hearing, however, the undersigned took defendant's motion under submission and issued an Order to Show Cause ("OSC") requiring plaintiff to explain his failure to appear. (OSC, Dkt. No. 30)
On January 19, 2012, plaintiff timely filed a written statement in substantial compliance with the court's OSC. (Dkt. No. 32.) Plaintiff sufficiently described the events contributing to his failure to appear: his cousin's unfortunate medical circumstances triggering plaintiff's admitted failure to properly read the court's minute orders.*fn2 (Id. at 2-3.) Plaintiff concedes that the orders were "not ambiguous," but explains that his misreading resulted from "the deluge of life and death issues" his cousin's medical situation presented. (Id. at 3.) While the undersigned excuses plaintiff's failure to appear (and failure to carefully read the court's order) on this particular occasion, future similar failures will not likely be excused.
The undersigned also reminds plaintiff of his obligation to timely prosecute his case. This will require plaintiff to increase the care with which he reads orders from this court, including minute orders.
Accordingly, it is hereby ORDERED that:
1. The Order to Show Cause (Dkt. No. 30) directed to plaintiff is discharged.*fn3
2. Defendants' pending motion to dismiss is set to be heard on February 2, 2012, at 10:00 a.m., in Courtroom 25. Defendant's counsel is permitted to appear telephonically at that hearing. Should plaintiff fail to appear at the hearing on February 2, 2012, absent extraordinary circumstances, plaintiff will be sanctioned and such sanctions may include dismissal of plaintiff's case. See E. Dist. Local Rules 110, 183, 230(i) ; Fed. R. Civ. P. 41(b); Ghazali v. Moran, 46 F.3d 52, 53 (9thCir. 1995); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants.").
IT IS SO ORDERED.