Robinson v. Adams, et al.

Filing 43

ORDER DENYING WITH PREJUDICE 42 Motion for an order granting motion to compel based on defendants' failure to file an opposition, signed by Magistrate Judge Gary S. Austin on 02/04/2010. (Martin, S)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 On January 19, 2010, Plaintiff filed a motion to compel and on February 2, 2010, Plaintiff filed a motion seeking an order granting his motion to compel based on Defendants' failure to oppose the motion. /// /// /// /// /// /// /// /// /// /// v. D. G. ADAMS, et al., (Doc. 42) Defendants. / GEORGE H. ROBINSON, Plaintiff, CASE NO. 1:08-cv-01380-AWI-GSA PC ORDER DENYING PLAINTIFF'S MOTION FOR AN ORDER GRANTING MOTION TO COMPEL BASED ON DEFENDANTS' FAILURE TO FILE AN OPPOSITION

UNITED STATES DISTRICT COURT

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Plaintiff's motion for an order granting his motion to compel on that basis is HEREBY DENIED, with prejudice.1 Plaintiff's motion to compel will be resolved on its merits in due course. Local Rule 230(l).

IT IS SO ORDERED. Dated: 6i0kij

February 4, 2010

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

The failure to file an opposition may be deemed a waiver of opposition to the granting of the motion. L o c a l Rule 230(l). It rests within the discretion of the Court to determine what sanctions, if any, will result from the fa ilu r e to file a response. See e.g., Martinez v. Stanford, 323 F.3d 1178, 1182-83 (9th Cir. 2003); Marshall v. Gates, 4 4 F.3d 722, 725 (9th Cir. 1995) (district court free to assess appropriate sanctions for failure to comply with local r u le , but may not grant summary judgment simply based upon violation of local rule). Further, in this instance, P la in tiff's motion was received and filed on January 19, 2010, yet contains a proof of service stating that it was s e r v e d by mail on December 27, 2009. Given that the motion was not even received by the Court for filing prior to th e expiration of twenty-days from the date of service, serious questions are raised regarding what opportunity D e fe n d a n ts have had to respond. Local Rule 230(l). The Court need not reach that issue at this time, however, b e c a u s e it will not grant Plaintiff's motion on the merits simply based on a lack of opposition to date. Plaintiff's m o tio n to compel will be considered in due course.

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