Hamilton v. Hart et al

Filing 38

ORDER Requiring Plaintiff to File Opposition or Statement of Non-Opposition to Defendant Prouty's Motion to Dismiss within Thirty Days, signed by Magistrate Judge Gary S. Austin on 3/25/14. (Verduzco, M)

1
2
3
4
5
6
7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

DENNIS L. HAMILTON,

12

Plaintiff,

13
14

vs.
JOHN HART, et al.,

15

Defendants.

1:10-cv-00272-LJO-GSA-PC
ORDER REQUIRING PLAINTIFF TO FILE
OPPOSITION OR STATEMENT OF NONOPPOSITION TO DEFENDANT PROUTY’S
MOTION TO DISMISS WITHIN THIRTY
DAYS
(Doc. 37.)

16
17

On January 28, 2014, defendant Prouty ("Defendant") filed a motion to dismiss. (Doc.

18

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

19

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

20

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

21

of any opposition to the granting of the motion..." The court may deem any failure to oppose

22

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

23

basis.

24

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

25

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

26

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

27

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

28

Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where plaintiff contends he
1

1

did not receive motion to dismiss, where plaintiff had adequate notice, pursuant to Fed. R. Civ.

2

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

3

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

4

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

5

appropriate exercise of discretion).

6

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

7

opposition or statement of non-opposition to the motion to dismiss filed by defendant Prouty on

8

January 28, 2014. If Plaintiff fails to comply with this order, the Court may deem the failure to

9

respond as a waiver, and recommend that the motion be granted on that basis.

10
11
12

IT IS SO ORDERED.
Dated:

March 25, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22

23
24
25
26
27
28
2