DeVon v. Diaz et al

Filing 42

ORDER signed by Magistrate Judge Gary S. Austin on 4/5/2012 requiring plaintiff to file opposition or statement of non-opposition to 41 MOTION to DISMISS filed by Carlson, T. Atkins. Filing Deadline: 5/8/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALAN DeVON,

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Plaintiff,

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1:07-cv-01727-AWI-GSA-PC
ORDER REQUIRING PLAINTIFF TO FILE
OPPOSITION OR STATEMENT OF NONOPPOSITION TO DEFENDANTS AKIN AND
CARLSON’S MOTION TO DISMISS WITHIN
THIRTY DAYS

v.
DIAZ, et al.,

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Defendants.

(Doc. 41.)
/

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On October 18, 2011, defendants Akin and Carlson ("Defendants") filed a motion to dismiss.

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(Doc. 41.) Plaintiff was required to file an opposition or a statement of non-opposition to the motion

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within twenty-one days, but has not done so. Local Rule 230(l).

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

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basis.

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Failure to follow a district court's local rules is a proper grounds for dismissal. U.S. v.

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Warren, 601 F.2d 471, 474 (9th Cir. 1979). Thus, a court may dismiss an action for plaintiff's

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

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oppose a motion will be deemed a waiver of opposition. See Ghazali v. Moran, 46 F.3d 52 (9th

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Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where plaintiff contends he
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did not receive motion to dismiss, where plaintiff had adequate notice, pursuant to Fed. R. Civ.

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P. 5(b), and time to file opposition); cf. Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995);

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Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993) (motion for summary

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judgment cannot be granted simply as a sanction for a local rules violation, without an

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appropriate exercise of discretion).

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Accordingly, 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 the motion to dismiss filed by Defendants. If

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Plaintiff fails to comply with this order, the Court will deem the failure to respond as a waiver,

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and recommend that the motion be granted on that basis.

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IT IS SO ORDERED.

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Dated:
6i0kij

April 5, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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