Opinion
No. C 11-04242 JSW
10-20-2011
JUNE BACON-BERCEY, Plaintiff, v. ROBERT J SULLIVAN, COL (RET), Defendant.
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED
On July 18, 2011, Plaintiff filed a Complaint in the Small Claims division of the Superior Court of the State of California for the County of San Mateo. On August 29, 2011, Defendants removed the action to this Court, and the case originally assigned to Magistrate Judge Spero. On September 2, 2011, Defendants filed a motion to dismiss. On September 26, 2011, Magistrate Judge Spero approved a stipulation regarding the briefing schedule for Defendants' motion to dismiss so that the parties could pursue a possible resolution of the matter.
Pursuant to that Stipulation, Plaintiff's opposition brief was due on October 14, 2011, and Defendant's reply was due on October 24, 2011, and a hearing was scheduled for November 4, 2011. On September 28, 2011, because Plaintiff did not consent to proceed before Judge Spero, this matter was reassigned to the undersigned Judge, and all hearing dates were vacated.
Although the reassignment order directed the parties to re-notice any pending motions, Defendants have not re-noticed the motion on this Court's law and motion calendar.
According to the record, Plaintiff failed to file an opposition brief by October 14, 2011. In addition, the copy of the Order issued by Judge Spero approving the briefing schedule that was sent to Plaintiff has been returned with a notation "vacant - unable to forward." (See Docket No. 15.)
Plaintiff is HEREBY ORDERED TO SHOW CAUSE why this matter should not be dismissed without prejudice for failure to prosecute. The Court notes that although Plaintiff is proceeding pro se, pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes while an action is pending must promptly file and serve upon all opposing parties a notice of change of address specifying the new address. See L.R. 3-11(a). The court may, without prejudice, dismiss a complaint when: (1) mail directed to the attorney or the pro se party by the court has been returned to the court as not deliverable, and (2) the court fails to receive within 60 days of this return a written communication from the attorney or pro se party indicating a current address. See L.R. 3-11(b).
Plaintiff's response to this Order to Show Cause shall be due by no later than November 4, 2011. If Plaintiff seeks to file a belated opposition brief to Defendant's motion to dismiss, she must file a copy of her opposition with a motion demonstrating good cause for her belated filing. If the Court does not receive a response from Plaintiff by November 4, 2011, or if this Order is returned, the Court shall dismiss this action without prejudice pursuant to and in accordance with N.D. Civ. L.R. 3-11(b).
IT IS SO ORDERED.
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
JUDGE
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
JUNE BACON-BERCEY, Plaintiff,
v.
ROBERT J SULLIVAN, COL (RET) et al, Defendant.
Case Number: CV11-04242 JSW
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.
That on October 20, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.
June Bacon-Bercey
250 Baldwin Avenue, PEN 901
San Mateo, CA 94401
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk