IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 25, 2012
CUONG TRAN, PLAINTIFF,
DEEPAK METHA, M.D., AND JACK MCANINCH, M.D., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding, in forma pauperis and without counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983, against defendants Mehta and McAninch. Both defendants, through separate counsel, timely waived service of process and filed answers to the complaint on June 29, 2012. On July 3, 2012, the court issued a Discovery and Scheduling Order.
However, on October 23, 2012, defendant Mehta filed a motion to dismiss plaintiff's claims against him, on the ground that plaintiff failed to exhaust his administrative remedies. Defendant Mehta's motion was filed outside the time limitations provided by Rules 4(d)(3), 12(a)(1)(A)(ii), and 12(b), Federal Rules of Civil Procedure. These rules require that a motion to dismiss be filed before an answer, which is due within 60 days after the request for waiver was sent. Here, defendant Mehta's motion to dismiss was filed after his answer, and 173 days after the request for waiver was sent on May 3, 2012.
Accordingly, IT IS HEREBY ORDERED that counsel for defendant Mehta shall, within fourteen days after the filing date of this order, show cause in writing for the late filing of defendant's motion to dismiss, and explain why this court should address the motion. IT IS FURTHER ORDERED that counsel for defendant McAnich shall, within seven days after defendant Mehta files his response to this order, inform the court of any objections defendant McAnich has to vacating the deadlines set forth in this court's Discovery and Scheduling Order, pending a decision on the motion to dismiss.
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