Opinion
3:10-CV-00595-ECR-VPC.
December 23, 2010
ORDER
Defendant has filed a Motion (#9) for judgment on the pleadings as to all claims in Plaintiff's complaint. If the motion is granted as to the federal claims such dismissal would likely be with prejudice.
Plaintiff in response has filed a Motion (#17) to dismiss his federal claims without prejudice and to remand the action to the state court from which it was previously removed. Defendant, among other things, opposes the dismissal by Plaintiff as piecemeal.
The essence of one possible key issue then is whether the federal claims should be dismissed with or without prejudice. If the Plaintiff's federal claims have sufficient merit to survive Defendant's Motion for Judgment on the Pleadings (#9), likely any dismissal granted based on Plaintiff's Motion (#17) to dismiss the federal claims should be without prejudice. If the Plaintiff's federal claims do not have sufficient merit on that basis, they should likely in any event be dismissed with prejudice whether on the basis of Plaintiff's Motion (#17) or on the basis of Defendant's Motion (#9).
In our Order (#20), we previously granted a stay of Plaintiff's obligation to respond to Defendant's Motion (#9) until we decided Plaintiff's Motion to Dismiss (#17). It now appears to the Court that the pending Motion (#9) of Defendant should, on the above stated basis, be decided first because such decision may resolve this pending issue as to whether Plaintiff's federal claims should be dismissed with or without prejudice.
As a matter of saving judicial resources, Plaintiff's response to the Defendant's Motion (#9) should also address Defendant's Motion (#9) with respect to the state claims as well as the federal claims.
IT IS, THEREFORE, HEREBY ORDERED that Plaintiff shall have twenty-one (21) days within which to respond to Defendant's Motion for Judgment on the Pleadings (#9). Defendant will thereafter have fourteen (14) days within which to file a reply in support of the motion.
IT IS FURTHER ORDERED that our Order (#20) is VACATED .
Dated this 23rd day of December, 2010.