(PS) Shaw v City of Portola et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
LINDSEY SHAW,
Plaintiff,
v.
CITY OF PORTOLA, et al.,
Defendants.
No. 2:25-CV-02461-DJC-DMC
ORDER
Plaintiff, who is proceeding pro se, brings this civil action. On October 1, 2025,
Defendants City of Portola, Ryan Bonk, Steve Gross, Jon Kennedy, Jim Murphy, and Susan
Scarlett filed a motion to dismiss. See ECF No. 5. Pursuant to Local Rule 302(c)(21), the matter
was set before the undersigned. See ECF Nos. 6 and 7.
On October 20, 2025, Defendants City of Portola, Gross, Scarlett, Murphey, Bonk
and Kennedy filed a notice of non-opposition, requesting their motion to dismiss be granted due
to Plaintiff’s failure to file an opposition to Defendants’ motion to dismiss. See ECF No. 9. On
October 27, 2025, Plaintiff filed an opposition to Defendants’ motion to dismiss, ECF No. 10, and
a motion for acceptance of opposition, ECF No. 11. The District Judge assigned to the matter
issued a minute order notifying Plaintiff that her motion for acceptance of opposition was
defective pursuant to Local Rule 302(c)(21), as it was noticed before the District Judge, rather
than the undersigned. See ECF No. 13.

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In her opposition, Plaintiff contends that Defendants’ service was improper
because the email address listed on the proof of service was incorrect. See ECF No. 10. Plaintiff
states that though she had not served Defendants Kennedy or Scarlett, the motion to dismiss filed
on their behalf constitutes a waiver of any objection to lack of service and personal jurisdiction
under Fed. Rule Civ. Pro. 12 (h)(1). See id. Plaintiff explains her delay in filing an opposition as a
misunderstanding of electronic filing access and once clarified by the Clerk’s Office, Plaintiff
mailed her opposition in accordance with such requirements. See ECF No. 11.
As to Plaintiff’s challenge to Defendants’ service of the motion to dismiss, the
Court notes that Plaintiff’s email listed on the proof of service is Lindsey.Schuck@gmail.com,
whereas the email listed on Plaintiff’s original complaint is LindseySchuck@gmail.com.
However, according to Gmail, “Dots don't matter in Gmail addresses.”1 Further, the proof of
service indicates that Defendants mailed the motion to dismiss via United States Postal Service to
Plaintiff at the address she listed on her complaint. See ECF No. 5-1, pg. 24. Thus, any service by
email was not necessary and Defendants properly served the motion to dismiss when such motion
was mailed to Plaintiff at her address.
As to the motion to dismiss, the Court is not inclined to grant the motion to
dismiss based on a Plaintiff’s failure to file an opposition within the deadline given the several
considerations here, including the Plaintiff’s pro se status, Plaintiff’s efforts to file an opposition,
albeit seven days past the deadline, and that Plaintiff provided the Corut with a reasonable
explanation for the delay. Thus, the Court will accept Plaintiff’s opposition as timely, reset the
briefing schedule to allow Defendants an opportunity to reply, and reset the hearing for the
motion to dismiss.
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1 See https://support.google.com/mail/answer/7436150?hl=en&sjid=10839895172104442656-
NC.

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Accordingly, it is hereby ORDERED that:
1. 	Plaintiff’s opposition to Defendants’ motion to dismiss, ECF NO. 10, is
deemed timely;
2. 	Plaintiff’s motion for acceptance of opposition, ECF No. 11, is DENIED as
MOOT;
3. 	Motion to dismiss hearing set for November 12, 2025, is VACATED;
4. 	Defendants may file a reply to Plaintiff’s opposition within 10 days of this
order; and
5. 	Motion to dismiss hearing is reset before the undersigned for November
19, 2025, 10:00 a.m., in Redding, California.
Dated: October 31, 2025
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE