Chavarria v. Green et al

Filing 26

ORDER REQUIRING Plaintiff to File Opposition or Statement of Non-Opposition to Defendants' Motion to Dismiss within Thirty Days signed by Magistrate Judge Gary S. Austin on 9/8/2014. (Sant Agata, S)

1
2
3
4
5
6
7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ANTHONY CHAVARRIA,

12

Plaintiff,

13
14

vs.
P. A. GREEN, et al.,

15

Defendants.

1:10-cv-02324-LJO-GSA-PC
ORDER REQUIRING PLAINTIFF TO
FILE OPPOSITION OR STATEMENT
OF NON-OPPOSITION TO
DEFENDANTS’ MOTION TO
DISMISS WITHIN THIRTY DAYS
(Doc. 24.)

16
17

On July 28, 2014, Defendants filed a motion to dismiss. (Doc. 24.) Plaintiff Anthony

18

Chavarria (“Plaintiff”) was required to file an opposition or a statement of non-opposition to

19

the motion 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

Defendants’ 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 the

26

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

27

failure to oppose a motion will be deemed a waiver of opposition. See Ghazali v. Moran, 46

28

F.3d 52 (9th Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where
1

1

plaintiff contends he did not receive motion to dismiss, where plaintiff had adequate notice,

2

pursuant to Fed. R. Civ. P. 5(b), and time to file opposition); cf. Marshall v. Gates, 44 F.3d 722,

3

725 (9th Cir. 1995); Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993)

4

(motion for summary judgment cannot be granted simply as a sanction for a local rules

5

violation, without an appropriate exercise of discretion). The court may also dismiss this case

6

for Plaintiff’s failure to comply with the court’s order. See Local Rule 110; Pagtalunan v.

7

Galaza, 291 F.3d 639, 642 (9th Cir. 2002)

8

Accordingly, IT IS HEREBY ORDERED that:

9

1.

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

10

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

11

Defendants on July 28, 2014; and

12

2.

13

Plaintiff’s failure to comply with this order may result in the dismissal of this
action.

14
15
16
17

IT IS SO ORDERED.
Dated:

September 8, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22

23
24
25
26
27
28
2