Berna v. Powell et al

Filing 15

SECOND INFORMATIONAL ORDER signed by Magistrate Judge Erica P. Grosjean on 2/9/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:15-cv-00283-AWI-EPG

BRUCE BERNA,
Plaintiff,
v.

SECOND INFORMATIONAL ORDER

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LUKE POWELL, et al.
Defendants.

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INFORMATIONAL ORDER TO PRO SE LITIGANTS
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Parties to this litigation shall take note of the following requirements:
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1.

Defendants must reply to the complaint within the time provided by the applicable

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provisions of Federal Rule of Civil Procedure 12(a).
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2.

Unless otherwise ordered, all motions to dismiss, motions for summary judgment,

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motions concerning discovery, motions pursuant to Rules 7, 11, 12, 15, 41, 55, 56, 59 and 60 of
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the Federal Rules of Civil Procedure, and motions pursuant to Local Rule 110 shall be briefed
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pursuant to Local Rule 230.
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3.

At some point in the litigation, Defendant(s) may file a motion to dismiss this

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action on any number of grounds. Plaintiff has the right to oppose the motion in writing. Written
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oppositions must be filed not more than 14 days, plus 3 days for mailing, prior to the noticed
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hearing date. Local Rule 230(c) provides that no party will be entitled to be heard in opposition to

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the motion at oral arguments if opposition to the motion has not been timely filed. Local Rule

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230(c).

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4.

At some point in the litigation, the Defendant(s) may move for summary judgment

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as to some or all of Plaintiff’s claims. Plaintiff should take note of the following rights and

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requirements for opposing the motion:

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a.

pursuant to Local Rule 230(c).

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Unless otherwise ordered, all motions for summary judgment are briefed

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Plaintiff is required to file an opposition or a statement of non-opposition

to Defendants’ motion for summary judgment. Local Rule 230(c).

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c.

A motion for summary judgment is a request for judgment on some or all

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of Plaintiff’s claims in favor of Defendant(s) without trial. Fed. R. Civ. P. 56(a). The

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motion sets forth the facts which Defendant(s) contend are not reasonably subject to

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dispute and that entitle them to judgment as a matter of law. Fed. R. Civ. P. 56(c). This is

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called the Statement of Undisputed Facts. Local Rule 260(a).

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Plaintiff has the right to oppose a motion for summary judgment. To oppose the

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motion, Plaintiff must show proof of his or her claims. Plaintiff may agree with the facts

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set forth in the motion but argue that Defendant(s) are not entitled to judgment as a matter

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of law.

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Alternatively, if Plaintiff does not agree with the facts set forth in the motion,
Plaintiff may show that the facts are disputed in one or more of the following ways:
(1) Plaintiff may rely on statements made under the penalty of perjury in
the complaint or the opposition if:
(a) the complaint or opposition shows that Plaintiff has personal
knowledge of the matters stated; and,
(b) Plaintiff calls to the Court’s attention those parts of the
complaint or opposition upon which Plaintiff relies;

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(2) Plaintiff may serve and file declarations setting forth the facts which
Plaintiff believes prove his or her claims;

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(3) Plaintiff may rely on written records but Plaintiff must prove that the
records are what Plaintiff purports them to be; or,

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(4) Plaintiff may rely on all or any part of the transcript of one or more

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depositions, answers to interrogatories, or admissions obtained in this proceeding.

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Should Plaintiff fail to contradict Defendants’ motion with declarations or other

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evidence, Defendants’ evidence will be taken as true, and final judgment may be

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entered without a full trial. Fed. R. Civ. P. 56(e).

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In opposing a motion for summary judgment, Local Rule 260(b) requires Plaintiff

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to reproduce Defendants’ itemized facts in the Statement of Undisputed Facts and admit

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those facts which are undisputed and deny those which are disputed. If Plaintiff disputes

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(denies) a fact, Plaintiff must cite to the evidence used to support that denial (e.g.,

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pleading, declaration, deposition, interrogatory answer, admission, or other document).

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Local Rule 260(b). Plaintiff should also consult any scheduling order issued to determine

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if a joint statement of undisputed facts is required by the judge. If a joint statement of

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undisputed facts is required, Plaintiff will be required to consult with the Defendant(s) to

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identify those facts that are undisputed by both parties.

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d.

If discovery has not yet been opened or if discovery is still open and

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Plaintiff is not yet able to present facts to justify the opposition to the motion, the Court

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will consider a request to postpone consideration of the motion. Fed. R. Civ. P. 56(d).

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Any request to postpone consideration of Defendants’ motion for summary judgment must

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include the following: (1) a declaration setting forth the specific facts Plaintiff hopes to

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elicit from further discovery; (2) a showing that the facts exist; and (3) a showing that the

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facts are essential to opposing the motion for summary judgment. Blough v. Holland

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Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009); Tatum v. City and County of San

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Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006); State of California v. Campbell, 138

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F.3d 772, 779 (9th Cir. 1998). The request to postpone the motion for summary judgment
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must identify what information is sought and how it would preclude summary judgment.

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Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 1100-01; Margolis v. Ryan, 140 F.3d

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850, 853 (9th Cir. 1998); Local Rule 260(b).

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e.

Unsigned declarations will be stricken and declarations that are not signed

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under penalty of perjury have no evidentiary value.

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5.

The failure of any party to comply with this order, the Federal Rules of Civil

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Procedure, or the Local Rules of the Eastern District of California may result in the imposition of

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sanctions including, but not limited to, dismissal of the action or entry of default.

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IT IS SO ORDERED.
Dated:

February 9, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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