Jones v. Jinparn ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 OAKLAND DIVISION 8 AL D. JONES, et al, Case No: C 19-02817 SBA 9 Plaintiffs, ORDER GRANTING PLAINTIFF 10 AL JONES’ MOTION FOR LEAVE TO vs. FILE A LATE OPPOSITION BRIEF 11 ADAM JINPARN, et al., Dkt. 56, 58 12 Defendants. 13 14 Plaintiffs Al D. Jones (“Al Jones”) and John W. Jones (“John Jones”) (collectively, 15 “Plaintiffs”), proceeding pro se, bring the instant action against several individuals and 16 entities, including Defendant Adam Jinparn, San Pablo Police Officer (“Officer Jinparn”), 17 for the alleged mishandling of the remains of their deceased brother, Harleem Sweets. 18 Plaintiffs initiated the instant action in the Contra Costa County Superior Court on 19 March 1, 2019. After removing the action to this Court, Officer Jinparn filed a motion to 20 dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On December 19, 2019, the 21 Court granted Officer Jinparn’s motion and dismissed the First, Second, Fifth, Sixth, and 22 Seventh Causes of Action with leave to amend. See Dkt. 46. 23 On January 8, 2020, Plaintiffs filed the operative First Amended Complaint 24 (“FAC”). Dkt. 48. On January 16, 2020, Officer Jinparn filed a motion to dismiss the FAC 25 pursuant to Rule 12(b)(6). Dkt. 49. Plaintiffs’ response to the motion was due by January 26 30, 2020. See Civ. L.R. 7-3(a). Plaintiffs failed to file a timely response. 27 On February 4, 2020, the Court issued an order directing Plaintiffs to file a response 1 grant the motion as unopposed, but nonetheless afforded Plaintiffs through February 12 to 2 file a response. Id. The Court warned Plaintiffs that the failure to file a response within the 3 time prescribed could result in dismissal of the action against Officer Jinparn. Plaintiffs did 4 not file a response by the extended deadline. 5 On February 14, 2020, Al Jones filed a Request for Extension to File Opposition to 6 Motion to Dismiss, stating that he did not receive a copy of Officer Jinparn’s motion to 7 dismiss the FAC or the Court’s order directing Plaintiffs to file a response thereto until that 8 day. Dkt. 56. He simultaneously filed a notice of change of address. Dkt. 57. 9 On February 18, 2020, Al Jones filed a combined “Motion for Relief” and 10 Opposition to Officer Jinparn’s motion to dismiss. Dkt. 58. In the motion for relief, he 11 seeks leave to file a late opposition on the ground that his address of record was not 12 operational and thus he did not receive copies of Officer Jinparn’s moving papers or the 13 Court’s order directing Plaintiffs to respond to the motion until February 14. Id. at 1-2. 14 The Court finds that the request for an extension and motion for relief to file a late 15 opposition are flawed in several requests. As a threshold matter, both the request and the 16 motion are signed only by Al Jones. The Court previously warned Plaintiffs that “every 17 pleading, motion and other paper must be signed by each unrepresented party personally.” 18 Dkt. 56 at 3 n.3 (citing Fed. R. Civ. P. 11(a)). Although Al Jones may represent himself 19 pro se, see 28 U.S.C. § 1654, he has no right or authority to represent John Jones. Simon v. 20 Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008). Consequently, neither the request 21 nor the motion seeks any relief on behalf of John Jones.1 22 Regarding Al Jones, his request for an extension and motion for leave to file a late 23 opposition fail to comply with the applicable local rules. See Civil L.R. 6-3(a) (describing 24 the requisite form and content of a motion to change time); Civil L.R. 7-11(a) (describing 25 26 1 At this late juncture, the Court will not afford John Jones additional time to file a separate response to Officer Jinparn’s motion to dismiss the FAC, as no request for such 27 relief has been made and doing so would only further delay disposition of the motion. If John Jones wishes to join in the opposition filed by Al Jones, however, he may file a notice 1}! the requisite form and content of a motion for administrative relief). Moreover, his 2|| justification for failing to file a timely opposition brief—delayed receipt of the moving 3|| papers—lacks merit. Officer Jinparn served the motion on Al Jones’ address of record. See Dkt. 49 at 11-12. Al Jones states he did not receive the moving papers because he 5|| “rarely goes to [that address] and has since filed a change of address with the court.” Dkt. 6|| 58 at 2. However, “a party proceeding pro so whose address changes while an action is pending must promptly file with the Court and serve upon all opposing parties a Notice of 8|| Change of Address specifying the new address.” Civil L-R. 3-11(a). Al Jones failed to 9|| promptly file and serve such a notice, and thus, delayed receipt of the moving papers is 10)| attributable only to his own neglect. 11 The above notwithstanding, the Court accepts as true Al Jones’ assertion that he did not receive the moving papers until February 14, 2020.2 He then promptly filed an opposition, which he attached to the motion seeking leave to file a late brief. See Dkt. 58 at 3-14. The opposition was filed only six days after the extended deadline set by the Court. 15 Accordingly, 16 IT IS HEREBY ORDERED THAT: 17 1. Plaintiff Al Jones’ motion for leave to file a late opposition brief is GRANTED and the opposition at Docket 58 is deemed filed. 19 2. Officer Jinparn shall have until February 26, 2020 to file a reply. 20 3. The Court will resolve the motion to dismiss without oral argument. 21 4. This Order terminates Dockets 56 and 58. 22 IT IS SO ORDERED. 23]| Dated: 2/19/2020 Aeuwtin I Gomatiing 4 AUNDRA BROWN ARMSTR Senior United States District Judge 25 26 2 Al Jones also states that he did not receive a copy of the Court’s order directing him to respond to the motion—which is dated February 3—until February 14. The Court notes that the order was served at Al’s new address of record, see Dkt. 54-1, and thus, should have been promptly received. However, although the order would have put him on 28]| notice that a motion is pending, the moving papers were required to formulate a response.