Navarro v. Herdon et al

Filing 113

ORDER signed by Magistrate Judge Kendall J. Newman on 8/30/2013 ORDERING plaintiff to file and serve his opposition, or statement of non-opposition, to defendnants' 107 motion to dismiss on or before 10/4/2013; defendants' reply due within 7 days after the docketing of plaintiff's brief. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIO NAVARRO,,

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No. 2:09-CV-1878 KJM KJN P

Plaintiff,
v.

ORDER

DEBRA HERNDON, et al.,,

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Defendant.

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On August 1, 2013, defendants filed a motion to dismiss, pursuant to Federal Rule of Civil

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Procedure 12. (ECF No. 107.) Plaintiff has not filed an opposition or statement of non-

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opposition, which was due within 21 days after service of the motion. (See ECF Nos. 63, 90.)

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See Local Rule 230(l).

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The court notes that, during this period, defendants have scheduled plaintiff’s deposition,

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and seek to modify the deadline for filing dispositive motions until after the court’s ruling on the

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pending motion to dismiss. In addition, plaintiff was ordered, on August 8, 2013, to provide

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discovery responses within 30 days. (See ECF No. 108.) These several matters demonstrate

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good cause to extend the time within which plaintiff may file and serve his opposition to the

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pending motion.

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Plaintiff should be aware of the following requirements. First, in their notice provided in
tandem with the motion to dismiss, defendants informed plaintiff of the requirements for
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opposing a motion to dismiss that is premised on plaintiff’s alleged failure to exhaust his

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administrative remedies. (See ECF No. 107-2.) See Rand v. Rowland, 154 F.3d 952, 962-3 (9th

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Cir. 1998) (en banc); Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003); Woods v.

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Carey, 684 F.3d 934, 940 n.6 (9th Cir. 2012).

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Second, failure to timely file and serve an opposition, or statement of non-opposition, to

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the motion may be deemed a waiver of opposition. Local Rule 230(l). Failure to comply with the

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Local Rules provides an independent ground for the imposition of “any and all sanctions

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authorized by statute or Rule or within the inherent power of the Court.” Local Rule 110.

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Moreover, Rule 41(b), Federal Rules of Civil Procedure, authorizes the involuntary dismissal of

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an action in which the plaintiff has failed to follow court orders or rules, or has failed to prosecute

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the action.

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Plaintiff shall bear these consequences in mind in considering the timing and content of
his opposition, or statement of non-opposition, to the pending motion.
Accordingly, good cause appearing, IT IS HEREBY ORDERED that plaintiff shall file

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and serve his opposition, or statement of non-opposition, to defendants’ pending motion to

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dismiss on or before Friday, October 4, 2013. Defendants may file and serve and reply within 7

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days after the docketing of plaintiff’s brief.

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SO ORDERED.

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Dated: August 30, 2013

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/nava1878.eot.oppo

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