Hasan v. Johnson
ORDER signed by Magistrate Judge Gary S. Austin on 11/7/2011 requiring plaintiff to file opposition or statement of non-opposition re 28 MOTION to DISMISS. (Filing Deadline: 12/7/2011). (Lundstrom, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ORDER REQUIRING PLAINTIFF TO FILE
OPPOSITION OR STATEMENT OF NONOPPOSITION TO DEFENDANT JOHNSON’S
MOTION TO DISMISS WITHIN THIRTY
B. JOHNSON, et al.,
On June 20, 2011, defendant Johnson ("Defendant") filed a motion to dismiss. (Doc. 28.)
Plaintiff was required to file an opposition or a statement of non-opposition to the motion within
twenty-one days, but has not done so. Local Rule 230(l).
Local Rule 230(l) provides that the failure to oppose a motion "may be deemed a waiver
of any opposition to the granting of the motion..." The court will deem any failure to oppose
Defendant's motion to dismiss as a waiver, and recommend that the motion be granted on that
Failure to follow a district court's local rules is a proper grounds for dismissal. U.S. v.
Warren, 601 F.2d 471, 474 (9th Cir. 1979). Thus, a court may dismiss an action for plaintiff's
failure to oppose a motion to dismiss, where the applicable local rule determines that failure to
oppose a motion will be deemed a waiver of opposition. See Ghazali v. Moran, 46 F.3d 52 (9th
Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where plaintiff contends he
did not receive motion to dismiss, where plaintiff had adequate notice, pursuant to Fed. R. Civ.
P. 5(b), and time to file opposition); cf. Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995);
Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993) (motion for summary
judgment cannot be granted simply as a sanction for a local rules violation, without an
appropriate exercise of discretion).
Accordingly, within thirty days of the date of service of this order, Plaintiff shall file an
opposition or statement of non-opposition to the motion to dismiss filed by Defendant. If
Plaintiff fails to comply with this order, the Court will deem the failure to respond as a waiver,
and recommend that the motion be granted on that basis.
IT IS SO ORDERED.
November 7, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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