Lee v. Alamedia, et al

Filing 83

ORDER GRANTING 69 Defendant Hough's Motion for Extension of Time Nunc Pro Tunc to File Unenumerated Rule 12(b) Motion to Dismiss; ORDER for Plaintiff to File Opposition or Statement of Non-Opposition to 64 Defendant White's Motion to Dismiss and 70 Defendant Hough's Motion to Dismiss Within Thirty (30) Days, signed by Magistrate Judge Gary S. Austin on 5/9/2011. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NORRIS LEE,

1:02-cv-05037-LJO-GSA-PC

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Plaintiff,

ORDER GRANTING DEFENDANT HOUGH
EXTENSION OF TIME NUNC PRO TUNC TO
FILE UNENUMERATED RULE 12(b) MOTION
TO DISMISS
(Doc. 69.)

v.
C/O HOUGH, et al.,

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THIRTY DAY DEADLINE FOR PLAINTIFF
TO FILE OPPOSITION OR STATEMENT OF
NON-OPPOSITION TO:

Defendants.
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1)

DEFENDANT WHITE’S MOTION TO
DISMISS (Doc. 64), AND

2)

DEFENDANT HOUGH’S MOTION TO
DISMISS (Doc. 70)

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Norris Lee (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on January 8, 2002. (Doc. 1.)

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I.

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The Court’s Discovery/Scheduling Order of December 14, 2010, established a deadline of

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February 14, 2011, for the parties to file unenumerated Rule 12(b) motions to dismiss. (Doc. 54.)

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On March 14, 2011, defendant Hough filed a motion to extend the deadline, in light of the fact that

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defendant Hough did not appear in this action until March 3, 2011, after the Court’s deadline had

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expired. (Doc. 69.) On March 15, 2011, defendant Hough filed an unemumerated Rule 12(b)

EXTENSION OF TIME

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motion to dismiss. (Doc. 70.) Good cause having been presented to the Court, defendant Hough

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shall be granted an extension of time nunc pro tunc to file an unenumerated Rule 12(b) motion to

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dismiss, and the motion to dismiss filed on March 15, 2011 shall be deemed timely.

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II.

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On February 14, 2011, defendant White filed a motion to dismiss this action, and on March

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15, 2011, defendant Hough filed a motion to dismiss this action. (Docs. 64, 70.) Plaintiff was

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required to file oppositions or statements of non-opposition to the motions within twenty-one days

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of the date the motions were filed, but has not done so. Local Rule 230(l).

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ORDER FOR PLAINTIFF TO RESPOND

Local Rule 230(l) provides that the failure to oppose a motion "may be deemed a waiver

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of any opposition to the granting of the motion..." The Court will deem any failure to oppose

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defendants’ motions to dismiss as a waiver, and recommend that the motions be granted on that

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basis. Moreover, failure to follow a district court's local rules is a proper grounds for dismissal.

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U.S. v.Warren, 601 F.2d 471, 474 (9th Cir. 1979). Thus, a court may dismiss an action for

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plaintiff's failure to oppose a motion to dismiss, where the applicable local rule determines that

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failure to oppose a motion will be deemed a waiver of opposition. See Ghazali v. Moran, 46 F.3d

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52 (9th Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where plaintiff

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contends he did not receive motion to dismiss, where plaintiff had adequate notice, pursuant to

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Fed. R. Civ. P. 5(b), and time to file opposition); cf. Marshall v. Gates, 44 F.3d 722, 725 (9th

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Cir. 1995).

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Defendant Hough’s motion for an extension of time to file an unenumerated Rule
12(b) motion to dismiss is GRANTED nunc pro tunc;

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2.

Defendant Hough’s motion to dismiss, filed on March 15, 2011, is deemed timely;

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3.

Within thirty days of the date of service of this order, Plaintiff shall file an

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opposition or statement of non-opposition to:

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1)

Defendant White’s motion to dismiss, filed on February 14, 2011, and

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2)

Defendant Hough’s motion to dismiss, filed on March 15, 2011; and

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4.

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If Plaintiff fails to comply with this order, the Court will deem the failure to
respond as a waiver, and recommend that the motions be granted on that basis.

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IT IS SO ORDERED.

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Dated:
6i0kij

May 9, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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