Opinion
Civil Action 2:22-cv-109
05-17-2023
BERRY GREEN, Plaintiff, v. OFFICER CAMARILLO; OFFICER WEST; and OFFICER TUCKER, Defendants.
ORDER
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants' Motion to Dismiss. Doc. 44. A motion to dismiss is dispositive in nature, meaning granting a motion to dismiss could result in the dismissal of individual claims or an entire action. Consequently, the Court is reluctant to rule on the Motion to Dismiss without providing Plaintiff an opportunity to respond or advising Plaintiff of the consequences for failing to respond.
Granting a motion to dismiss without affording a plaintiff either notice or an opportunity to be heard is disfavored. Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336-37 (11th Cir. 2011); see also Neitzke v. Williams, 490 U.S. 319, 329-30 (1989) (A notice of a motion to dismiss “alert[s plaintiff] to the legal theory underlying the defendant's challenge” and enables him to meaningfully respond “by opposing the motion to dismiss on legal grounds or by clarifying his factual allegations so as to conform with the requirements of a valid legal cause of action.”).
Accordingly, the Court ORDERS Plaintiff to file a response either opposing or indicating his lack of opposition to Defendants' Motion to Dismiss within 14 days of the date of this Order. If Plaintiff fails to file a timely response, the Court will presume Plaintiff does not oppose the Motion and may dismiss individual claims or the entire action. See Local R.7.5 (“Failure to respond . . . shall indicate that there is no opposition to a motion.”). To ensure Plaintiff's response is made with fair notice of the requirements of the Federal Rules of Civil Procedure regarding motions to dismiss generally, the Court DIRECTS the Clerk of Court to provide a copy of Federal Rules of Civil Procedure 12 and 41 when serving this Order upon Plaintiff.
SO ORDERED