Clarke v. Upton, et al

Filing 146

ORDER Granting Plaintiff's Request and setting a briefing schedule signed by Chief Judge Anthony W. Ishii on 12/13/11. (Nazaroff, H)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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SANDRA UPTON; AMPARO
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WILLIAMS; DEPARTMENT OF
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SOCIAL SERVICES; and COUNTY OF )
MADERA
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Defendants.
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____________________________________)
STANLEY BRADFORD CLARKE,

1:07-CV-0888 AWI-SMS
ORDER ON PLAINTIFF’S
REQUEST FOR LATE FILING
OF OPPOSITION TO
SUMMARY JUDGMENT
(Doc No. 145)

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Now pending before the Court is Defendants’ motion for summary judgment. The matter
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was scheduled to be heard on August 29, 2011. On September 14, 2011, due to the retirement of
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the Honorable Oliver W. Wanger, all previously set hearing dates in this case occurring within 60
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days were vacated. See Court’s Docket, Doc. No. 139. On October 19, 2011, this case was
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reassigned to the undersigned. See id. at Doc. No. 142. On October 20, 2011, the Court set a
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December 5, 2011 hearing on Defendants’ motion for summary judgment. See id. at Doc. No.
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143. Plaintiff’s opposition to the motion or notice of non-opposition was due on November 21,
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2011. See Local Rule 78-230(c). On December 1, 2011, the Court vacated the December 5,
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2011 hearing date and took Defendants’ motion for summary judgment under submission. See
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Court’s Docket, Doc. No. 144.
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The Court’s Docket indicates that Documents 142 and 143 were served on Plaintiff by

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mail. However, Plaintiff called the Court on December 8, 2011, after receiving Document 144,

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and stated he had not received Documents 142 and 143. Plaintiff was therefore unaware the case

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had been reassigned and the summary judgment hearing was set for December 5, 2011. On

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December 9, 2011, Plaintiff filed a request for relief to allow him time to file an opposition to

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summary judgment; time to copy, collate, and serve the opposition; and a briefing schedule for

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all remaining deadlines.

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The Court finds that because Plaintiff purports to have had no notice of the December 5,

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2011 hearing date, he is entitled to late filing of an opposition. Plaintiff indicates he has already

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prepared the opposition and was simply waiting to file it until the hearing on the motion was

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scheduled. Defendants’ motion for summary judgment is now under submission, and the Court

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believes it has sufficient time to review the late filed materials without undue prejudice to

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Plaintiff or Defendants.

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Accordingly, the court ORDERS that:

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1.

Plaintiff’s request to allow late filing is GRANTED.

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2.

Plaintiff shall file any opposition to Defendants’ motion for summary judgment no

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later than 4 p.m. on December 27, 2011.

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3.

Defendants shall file any reply no later than 4 p.m. on January 3, 2011.

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4.

The Court will consider Plaintiff’s opposition and Defendants’ reply along with

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the other moving papers under submission and will thereafter issue its decision.
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Further dates if needed shall be set upon the court’s ruling on the motion for
summary judgment.

IT IS SO ORDERED.

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Dated:
0m8i78

December 13, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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