Opinion
No. CIV 05-00035 ALA P.
August 13, 2007
ORDER
On July 5, 2007, Defendants Christine Milligan, Robert Brown and David Edwards filed a motion to dismiss Plaintiff Rico Hayes' Bivens action under various subsections of Rule 12(b) of the Federal Rules of Civil Procedure. Docket No. 31. Mr. Hayes did not file any opposition to that motion. On August 9, 2007, Defendants filed a reply in support of their motion to dismiss, in which they argued that Mr. Hayes' failure to file an opposition to their motion to dismiss constitutes a waiver of any such opposition. Reply at 2-3.
Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). "A "Bivens action" is a commonly used phrase for describing a judicially created remedy allowing individuals to seek damages for unconstitutional conduct by federal officials." Stanley v. Gonzales, 476 F.3d 653, 657 n. 1 (9th Cir. 2007).
Defendants contend in their Reply brief that they "served their moving papers on [Mr. Hayes] by mail on July 5, 2007." Reply at 2. However, Defendants failed to attach a proof of service to the original of the motion to dismiss they filed with this Court, as required by Eastern District Local Rule 5-135(c). The docket contains no other indication that Mr. Hayes was ever served with the motion to dismiss. Without any indication that Mr. Hayes was so served, the Court cannot determine the effect of Mr. Hayes' failure to file an opposition.
Local Rule 5-135(c) provides, "When service of any pleading, notice, motion, or other document required to be served is made, proof of such service shall be endorsed upon or affixed to the original of the document when it is lodged or filed."
For the foregoing reasons, Defendants Christine Milligan, Robert Brown and David Edwards are hereby ordered to show cause, on or before September 17, 2007, why this Court should not disregard their July 5, 2007 motion to dismiss for failure to comply with Local Rule 5-135(c).