Opinion
No. C-10-3894 EMC
10-14-2011
DAVID LITMON, JR., Plaintiff, v. EDMUND G. BROWN, Attorney General of California, et al., Defendants.
ORDER DENYING PLAINTIFF'S
MOTION FOR COURT TO RESCIND
ORDER
(Docket No. 50)
Plaintiff David Litmon, Jr. has moved the Court to rescind its order of September 12, 2011, in which it granted Defendants' motion to strike the first amended complaint. According to Mr. Litmon, the order should be rescinded because it incorrectly stated that he did not file an opposition to the motion.
Mr. Litmon is correct that he filed an opposition. However, that opposition was not timely filed. See Civ. L.R. 7-3(a) (providing that an opposition must be filed and served not more than 14 days after the motion is filed and served). In any event, the Court has now considered the arguments made by Mr. Litmon in his opposition and finds none of them availing. For example, Mr. Litmon claims that Governor Brown signed and/or authorized California Penal Code § 290.012; however, that does not mean that the governor is responsible for its enforcement. Also, Mr. Litmon does not address in his opposition the basis on which other persons allegedly similarly situated received preferential treatment. Finally, contrary to what Mr. Litmon asserts, the arguments made by Defendants are entirely appropriate for consideration at the Rule 12(b)(6) phase rather than on summary judgment. Only if a plaintiff pleads a facially plausible claim may he or she be permitted to proceed with the case.
Finally, the Court notes that Mr. Litmon has not been prejudiced to the extent that, in its September 12 order, the Court gave him an opportunity to file a second amended complaint which he has now done.
To the extent Mr. Litmon has asked for alternative relief - i.e., that the September 12 order be amended to reflect that he did an opposition - the Court notes that its order here renders that relief moot. The Court acknowledges that Mr. Litmon did file an opposition but, as noted above, the opposition was not timely filed.
This order disposes of Docket No. 50.
IT IS SO ORDERED.
EDWARD M. CHEN
United States District Judge
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
DAVID LITMON, JR., Plaintiff,
v.
EDMUND G. BROWN, Attorney General of California, et al., Defendants.
No. C-10-3894 EMC
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the U.S. District Court, Northern District of California. On the below date, I served a true and correct copy of the attached, by placing said copy/copies in a postage-paid envelope addressed to the person(s) listed below, by depositing said envelope in the U.S. Mail; or by placing said copy/copies into an inter-office delivery receptacle located in the Office of the Clerk.
DAVID LITMON, JR.
32314 Ruth Court
Union City, CA 94587
RICHARD W. WIEKING, CLERK
Leni Doyle
Deputy Clerk