Harvey v. City of South Lake Tahoe et al

Filing 100

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/17/2014 ORDERING the Clerk is directed to serve plaintiff with a copy of 99 Order to Show Cause; the Court's 12/30/2013 order to show cause is MODIFIED as follows: a) 97 Motion to Dismi ss hearing is CONTINUED to 2/26/2014; b) plaintiff shall SHOW CAUSE, in writing, no later than 2/12/2014, why sanctions should not be imposed for failure to timely file an opposition or a statement of non-opposition to the pending motion; c) plaintif f shall file an opposition to the motion, or statement of non-opposition thereto, no later than 2/12/2014; d) failure of plaintiff to file an opposition to the motion will be deemed a statement of non-opposition thereto, and may result in a recommend ation that this action be dismissed for lack of prosecution and/or for failure to comply with the court orders and this court's local rules; e) defendants may file a reply to plaintiff's opposition, if any, on or before 2/19/2014. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL THOMAS HARVEY,

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No. 2:10-cv-1653-KJM-EFB PS

Plaintiff,
v.

ORDER

ANDREW EISSINGER, CHARLES
DUKE, SHANNON LANEY, and JAKE
HERMINGHAUS,

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Defendants.

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On November 27, 2013, defendants filed a motion to dismiss the fifth amended complaint

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for failure to state a claim.1 ECF No. 97. Defendants noticed the hearing on that motion for

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January 8, 2014. Id. Pursuant to this court’s local rules, plaintiff was required to file an

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opposition or a statement of non-opposition to the motion by December 26, 2013. See E.D. Cal.

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L.R. 230(c); Fed. R. Civ. P. 6(a).

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Plaintiff failed to timely file an opposition or statement of non-opposition. Therefore, on

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December 30, 2013, plaintiff was ordered to show cause, in writing, no later than January 15,

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2014, why sanctions should not be imposed for failure to timely file an opposition or a statement

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of non-opposition to the pending motion. ECF No. 99. The order also continued the hearing on

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This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to
28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21).
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defendants’ motion to dismiss to January 29, 2014, and ordered plaintiff to file an opposition or

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statement of non-opposition to the pending motion no later than January 15, 2014. Id. As of the

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date of this order, plaintiff has not filed an opposition or statement of non-opposition. However,

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court records reflect that the Clerk of the Court failed to serve plaintiff with the December 30

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order to show cause. That order shall be served on plaintiff forthwith. Further, plaintiff will be

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given additional time to file an opposition or statement of non-opposition and to respond to the

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December 30, 2013 order to show cause.

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Accordingly, it is hereby ORDERED that:

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1. The Clerk is directed to serve plaintiff with a copy of the court’s December 30, 2013

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order to show cause, ECF No. 99.
2. The court’s December 30, 2013 order to show cause is modified as follows:
a. The hearing on defendants’ motion to dismiss (ECF No. 97) is continued to
February 26, 2014.

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b. Plaintiff shall show cause, in writing, no later than February 12, 2014, why

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sanctions should not be imposed for failure to timely file an opposition or a statement of non-

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opposition to the pending motion.

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c. Plaintiff shall file an opposition to the motion, or a statement of non-opposition
thereto, no later than February 12, 2014.
d. Failure of plaintiff to file an opposition to the motion will be deemed a

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statement of non-opposition thereto, and may result in a recommendation that this action be

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dismissed for lack of prosecution and/or for failure to comply with court orders and this court’s

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Local Rules. See Fed. R. Civ. P. 41(b).

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e. Defendants may file a reply to plaintiff’s opposition, if any, on or before

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February 19, 2014.

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DATED: January 17, 2014.

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