UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

__________________________________________ ) SARAH SI MON-ARNO L D, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 12-0955 ( PL F) ) EPI Q CL ASS ACTI ON & ) CL AI MS S OLUTI ONS, I NC., ) ) Def endant. ) __________________________________________)

MEMORANDUM OPI

NI ON AND ORDER On Aug ust 17, 2012, the defe ndant filed a motion to di smiss and/or for summary judgme nt. See Docke t No. 14. The plaintiffs’ response was due on September 4, 2012. F E D . R. C I V . P. 6(a) (1), ( d); L CvR 7(b). The plaintiffs, who a re pr ocee ding pro se , have not y et filed a ny response . On September

14, 2012, the def

endant f iled a re ply

in support of its moti on, reque sting that the Court treat its m otion to dis miss and/or for summary judgme nt as conc eded by the plaintiffs and dismiss their complaint with prejudice. See Docke t No. 19.

Under L ocal Civil Rule 7(b), if a pa rty fails to file a r esponse to a motion within the pre scribed time, “ the Court may trea t the motion as conce ded.” L CvR 7(b). I n Fox v. Strickland, 837 F.2d 507 ( D.C. Cir. 1988), the Court of Appe als held that a district c ourt must take pa ins to advise a pro se party of the c onsequenc es of f

ailing to r espond to a dispositive motion. “That notice . . . should include a n explanation that the failure to r espond . . . may result in the district court g ranting the motion and dismiss ing the case .” I d. at 509. The Court ther efor e will not treat the def

endant’ s motion as concede d at this tim e, but it here by advises the plaintiffsof their oblig ations under the F eder al Rules of Civil P roce dure a nd the L ocal Civil Rules. I f the plaintiffs fail to submit a memorandum re sponding to the de fenda nts’ motion, the Court may treat the motion as conce ded, g rant the motion, and dismiss their case

.

The Court of Appe als has fur ther stated that the district court must inform pro se litigants that, on a motion for summar y judgme nt, “any

fac tual asser

tion in the movant’s aff idavits will be acc epted by the district judge as beingtrue unless [the opposing pa rty ] subm its his own aff

idavits or other doc umentary evidenc e contr adicting the asser tion.” Nea l v. Kelly , 963 F.2d 453, 456 ( D.C. Cir. 1992) (quotation omitted). The plaintiffs’ attention is directed to Rule 56 of the F eder al Rules of Civil P roce dure, w hich states in par t: The court shall gra n t s ummary judgme nt if the movant shows that there is no ge nuine dispute as to a ny materia l f

act and the movant is entitled to judgment a s a matter of law. F E D . R. C I V . P. 56(a) . This Court will accept a s true any fac tual asser

tions contained in aff idavits, declar ations, or attac hments submitt ed by the def endant in support of its motion for summary judgme nt unless the plaintiffs submit affidavits, dec lara tions, or documentar

y evidenc e showing that the def

endant’ s assertions ar e untrue . See Ne al v. Kelly , 963 F.2d at 456. Finally , the Court notes that on September 27, 2012, the plaintiffs filed a notice of appea l, purporting to appea l “from the judg ment of this Court entere d on the 17th day of August, 2012, in favor of

EPI Q Class Action & Claims S olutions, I nc.” D ocket No. 20 at 1. No J udg ment or Orde r wa s issued on Aug ust 17, which was instea d the day that the def

endant f iled its mot ion to dism iss and/or for summar y judgme nt. The Court has not g rante d the def endant’ s motion or entere d judgme nt for the de fenda nt, and so there is nothing fr om which to appea l. The

2plaintiffs are advised that if they wish to ensure that this C ourt reta ins jurisdiction over their ca se, they should consider withdra

wing their notice of

appea l. Acc ording ly , it is hereby ORDERED that the plaintiffs shall re spond to defenda nt’s motion to di smiss and/or for summary judgme nt on or befor e Oc tober 23, 2012. I f the plaintiffs ne ither re spond nor move for a

n extension of tim e by

that date, the Court may

treat the motion as conce ded and dismiss the plaintiffs’ c omplaint.

SO ORDERED. /s/ PAULL . FRI EDMAN DATE: Oc tober 2, 2012 United States District J udg e

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