Free Order to Show Cause - District Court of California - California

Case 4:08-cv-01066-SBA

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Filed 09/08/2008

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1 2 3 JANE R. EVANS, 4 Plaintiff, 5 v. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION No. C 08-01066 SBA ORDER [Docket No. 27]

SANDPLAY THERAPISTS OF AMERICA, Defendant.

Before the Court is defendant's Motion to Dismiss or, Alternatively, for Summary Judgment (the "Motion") [Docket No. 27]. For the following reasons, the Court sets an Order to Cause hearing regarding whether to grant or deny the Motion. Evans is proceeding in propria persona and in forma pauperis. She has filed a 150-page complaint which is not a model of clarity. The first page of the Complaint is from a Northern District of California form Employment Discrimination Complaint, which indicates Evans is proceeding under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Docket No. 1 at 1. Nonetheless, a review of the Complaint's first eight pages shows allegations of discriminatory, retaliatory, and harassing conduct on the basis of Evan's ethnicity, national origin, and/or perceived mental or emotional condition, by what could be agents of her employer, a fee-based educational institution she attended, or her therapist. See Docket No. 1 at 1-8. Defendant's Motion is predicated on two grounds: that it never employed Evans, and that it lacks sufficient employees to qualify as an "employer" as defined in Title VII. See Docket No. 23 at 2:19-24. Neither of these allegations can be verified on the face of Evans' Complaint. Evans has not responded to defendant's Motion. Paragraph 8 of the Court's Standing Order for Civil Cases provides, "The failure of the opposing party to file a memorandum of points and authorities in opposition to any motion shall constitute a consent to the granting of the motion." Nonetheless, because plaintiff is proceeding without the benefit of counsel, and because the Court has questions regarding defendant's Motion, the Court sets an OSC hearing regarding defendant's Motion.

Case 4:08-cv-01066-SBA

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Accordingly, it is ORDERED that: (1) Plaintiff shall appear in Courtroom 3 of the United States Courthouse, 1301 Clay Street, Oakland, California, on October 16, 2008, at 4:00 p.m., to show cause why the above-captioned case should not be dismissed without prejudice for failure to oppose defendant's Motion. At least ten days prior to the above hearing, Plaintiff must file a "Certificate of Plaintiff" with the Clerk of the Court, to explain why the case should or should not be dismissed for failure to oppose defendant's Motion. The Certificate shall set forth the nature of the cause, its present status, any basis for opposition to dismissal by any party, and its expected course if not dismissed. Please take notice that this Order requires both the specified court appearance and the filing of the Certificate of Plaintiff. Failure to fully comply with this order will be deemed sufficient grounds to dismiss the action and the related action. Any party to this action or the related action, other than plaintiff, may file a statement, as described in paragraph (2), or appear at the hearing set in paragraph (1), to argue why this action and the related action should not be dismissed. At least ten days prior to the above hearing, defendant must file a brief with the Court explaining why plaintiff's Complaint is subject to dismissal under Rule 12(b)(6) for failure to state a claim, given she alleges discriminatory, retaliatory, and harassing conduct on the basis of ethnicity, national origin, and/or perceived mental or emotional condition, by what could be agents of her employer, a fee-based educational institution she attended, or her therapist. Alternatively, defendants may withdraw their Motion. The hearing set for September 9, 2008, at 1:00 p.m., for defendant's Motion to Dismiss or, Alternatively, for Summary Judgment [Docket No. 27] is VACATED. The Case Management Conference set for September 9, 2008, at 1:00 p.m., is CONTINUED to October 16, 2008, at 4:00 p.m. The parties shall meet and confer prior to the conference and shall prepare a joint Case Management Conference Statement which shall be filed no later than ten (10) days prior to the Case 2

(2)

(3)

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Management Conference that complies with the Standing Order for all Judges of the Northern District of California and the Standing Order of this Court. Defendant shall be responsible for filing the statement. IT IS SO ORDERED. September 5, 2008 _________________________________ Saundra Brown Armstrong United States District Judge

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Case 4:08-cv-01066-SBA

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Filed 09/08/2008

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

EVANS et al, Plaintiff, v. SANDPLAY THERAPISTS OF AMERICA et al, Defendant. /

Case Number: CV08-01066 SBA CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on September 8, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Jane Rocio Evans PO Box 424886 San Francisco, CA 94142 Dated: September 8, 2008 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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