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Owens v. Nuxoll

United States District Court, Ninth Circuit

July 10, 2013

JAMES N. OWENS, Plaintiff,
v.
RUSSELL NUXOLL, et al., Defendants.

ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff James N. Owens ("plaintiff") is proceeding without counsel and in forma pauperis.[1] On May 7, 2013, plaintiff filed his Second Amended Complaint. (Second Am. Compl., ECF No. 33.)

On June 17, 2013, defendants Russell Nuxoll and Janet Sylten ("defendants") filed a document styled as a "Motion For Summary Judgment, " which the undersigned partially construes as a Motion To Dismiss For Lack Of Subject Matter Jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).[2] (ECF No. 35.) Defendants, who are also proceeding without counsel, set their motion to be heard on July 18, 2013. (Id.)

Based upon that hearing date and pursuant to Eastern District Local Rule 230(c), plaintiff was required to file a written opposition or statement of non-opposition to the pending motion on or before July 4, 2013.[3] However, plaintiff filed an Opposition (ECF No. 40) several days late, on July 8, 2013.

Plaintiff's unexplained failure to timely oppose the pending motion runs afoul of Local Rule 230(c). The parties in this case have previously been warned about their obligations to timely comply with the rules of litigation procedure notwithstanding the fact that they are proceeding without counsel. (E.g., Order, ECF No. 30 at 4 (citing authorities).) However, taking plaintiff's pro se status into account, the undersigned will accept the late-filed Opposition and will continue the hearing so as to ensure that defendants have sufficient time to file their reply briefing. E.D. Cal. L.R. 230(d). In the future, any party's unexplained failure to timely comply with procedural rules and/or court orders may subject that party to sanctions.[4]

Accordingly, for all the foregoing reasons, IT IS HEREBY ORDERED THAT:

1. The undersigned partially construes defendants' pending "Motion For Summary Judgment" as a Motion To Dismiss For Lack Of Subject Matter Jurisdiction. (ECF No. 35.) The motion is currently set to be heard on July 18, 2013. That hearing date is hereby VACATED. Defendants' Request For Telephonic Appearance (ECF No. 38) at the vacated hearing is denied as moot. The hearing on the pending motion (ECF No. 35) is hereby RESET for August 8, 2013, at 10:00 a.m., in Courtroom 25 before the undersigned.
2. Defendants may file a reply brief to specifically address points made within plaintiff's Opposition (ECF No. 40). Defendants' reply briefing, if any, may be filed on or before August 1, 2013.
3. Should any party wish to appear telephonically at the hearing on August 8, 2013, that party should file a Request To Appear Telephonically on or before July 29, 2013. The Request need only consist of a short paragraph stating the reason(s) for the requested telephonic appearance and the number at which the party can be reached during the hearing.

IT IS SO ORDERED.


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