Opinion
1:20-cv-00323-NE-BAM
07-29-2021
DORA SOLARES, Plaintiff, v. RALPH DIAZ, et al., Defendants.
ORDER GRANTING PLAINTIFF'S UNOPPOSED EX PARTE APPLICATION FOR A RULING ON DEFENDANTS' MOTION TO DISMISS (DOC. 34)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.
Plaintiff Dora Solares initiated this civil rights action against defendants Ralph Diaz, Kenneth Clark and Joseph Burns (collectively “Defendants”) on March 2, 2020. (Doc. 1.) Plaintiff filed a first amended complaint on June 8, 2020.
On June 22, 2020, Defendants moved to dismiss Plaintiff's first amended complaint. (Doc. 16.) The motion is fully briefed.
On April 12, 2021, the district court referred the motion to dismiss to the undersigned for findings and recommendations. (Doc. 28.) Thereafter, on April 16, 2021, the court stayed discovery in this action pending an order resolving the motion to dismiss. The court indicated that it would address the pending motion to dismiss as soon as practicable to minimize any delay. (Doc. 32.)
On July 28, 2021, Plaintiff filed the instant ex parte application requesting a ruling on the motion to dismiss. (Doc. 34.) Plaintiff notes that more than a year has passed since Defendants filed their motion to dismiss and more than three months have passed since the motion was referred to the undersigned. Plaintiff's counsel declares that the delay in a ruling on the motion to dismiss results in the continued stay of discovery and, in turn, “severely prejudices Plaintiff.” (Doc. 34, Declaration of Counsel at ¶¶ 5, 6.) Plaintiff's counsel reports, on information and belief, that some potential witnesses have been released from CDCR custody and/or employment, which hampers Plaintiff's ability to locate these witnesses and forces Plaintiff to incur significant costs conducting private independent investigation of this case that would otherwise be addressed by discovery. (Id. at ¶ 6.) Plaintiff indicates that Defendants do not oppose the ex parte request.
As a general matter, the court attempts to address motions in the order in which they are filed and strives to avoid delays whenever possible. However, as the parties are aware, the judges of the Eastern District of California have long labored under one of the heaviest caseloads in the nation, and delays are inevitable despite the court's best efforts. The court is cognizant of the delay in resolving the pending motion to dismiss and will issue findings and recommendations in due course. Accordingly, Plaintiff's ex parte application for a ruling on Defendants' motion to dismiss (Doc. 34) is HEREBY GRANTED.
IT IS SO ORDERED.