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Parker v. Fowler

United States District Court, E.D. California

February 27, 2014

RORY PARKER, Plaintiff,
v.
TINA FOWLER, et al., Defendants.

ORDER

CAROLYN K. DELANEY, Magistrate Judge.

This action was referred to the undersigned pursuant to Local Rule 302(c)(21). Plaintiff is proceeding pro se. Plaintiff has filed an in forma pauperis affidavit in which he states that his monthly take home pay is $1, 650. Because this action was removed from state court, plaintiff does not have to pay a filing fee. The amount of plaintiff's income shows that plaintiff is able to pay any other additional fees or costs associated with this action. Thus, plaintiff has made an inadequate showing of indigency. See Alexander v. Carson Adult High Sch. , 9 F.3d 1448 (9th Cir. 1993); California Men's Colony v. Rowland , 939 F.2d 854, 858 (9th Cir. 1991); Stehouwer v. Hennessey , 841 F.Supp. 316, (N.D. Cal. 1994). Plaintiff's request to proceed in forma pauperis will therefore be denied.

By order filed January 30, 2014, plaintiff BMT International Security Services was directed to obtain counsel. Plaintiff Parker has filed a response indicating that plaintiff operates BMT as a sole proprietorship. Plaintiff may accordingly proceed in this action without counsel. See United States v. Fox , 721 F.2d 32, 36 (2d Cir.1983) (sole proprietorship has no legal existence apart from its owner; individual owner may represent sole proprietorship in pro se capacity).

Calendared for hearing on March 12, 2014 is defendants' motion to dismiss for lack of subject matter jurisdiction. No opposition to the motion has been filed. Local Rule 230(c) provides that opposition to the granting of a motion must be filed fourteen days preceding the noticed hearing date. The Rule further provides that "[n]o party will be entitled to be heard in opposition to a motion at oral arguments if written opposition to the motion has not been timely filed by that party." In addition, Local Rule 230(i) provides that failure to appear may be deemed withdrawal of opposition to the motion or may result in sanctions. Finally, Local Rule 110 provides that failure to comply with the Local Rules "may be grounds for imposition of any and all sanctions authorized by statute or Rule or within the inherent power of the Court."

Good cause appearing, IT IS HEREBY ORDERED that:

1. Plaintiff's request to proceed in forma pauperis (ECF No. 11) is denied.

2. The order filed January 30, 2014 is discharged.

3. The hearing date of March 12, 2014 is vacated. Hearing on defendants' motion is continued to April 30, 2014 at 10:00 a.m. in courtroom no. 24.

4. Plaintiff shall file opposition, if any, to the motion no later than April 2, 2014. Failure to file opposition will be deemed as a statement of non-opposition and shall result in submission of the motion on the papers and a recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

5. Reply, if any, shall be filed no later than April 9, 2014.


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