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Whitt v. American General Life Companies

April 20, 2006

SHARON WHITT, PLAINTIFF,
v.
AMERICAN GENERAL LIFE COMPANIES, DEFENDANT.



The opinion of the court was delivered by: Herndon, District Judge

ORDER

In the instant matter, Defendant has filed a Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 7), in response to Plaintiff's Complaint (Doc. 1).Plaintiff's opposing Response was due to be filed on or before April 10, 2006. On April 12, 2006, two days after the filing deadline, Plaintifffiled a letter with enclosed Motion for Extension of Time to File Response and/or Motion to File Instanter, along with a proposed order (Docs 8 & 9).However, because these pleadings did not follow proper filing procedures, both documents 8 and 9 were stricken, the reasons specified on the Notice of Striking (Doc. 11), stating that the filer must properly re-file the stricken documents.

To date, it appears Plaintiff has made no further attempt to re-file such documents. Under CIVIL LOCAL RULE 7.1(c),"[f]ailure to timely file an answering brief to a motion may, in the court's discretion, be considered an admission of the merits of the motion." It is obvious Plaintiff has a substantive opposing Response, as can be seen in the stricken filing of document 9. Yet, the Court may not consider this Response, because technically it is not on the record and thus, not properly before the Court, as it has been stricken and must be re-filed.

Accordingly, the Court allows Plaintiff until Wednesday, April 26, 2006, in which to re-file her opposing Response to Defendant's Motion to Dismiss (or other responsive pleading). If Plaintiff does not file a responsive pleading by this new deadline, the Court, in its discretion pursuant to CIVIL LOCAL RULE 7.1(c), will deem this an admission of the merits of Defendant's Motion to Dismiss (Doc. 7) and thereby grant the motion.

IT IS SO ORDERED.

David R Herndon United States District Judge

20060420

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