Chappell v. Duc et al

Filing 65

ORDER signed by Magistrate Judge Allison Claire on 03/10/14 ordering that within 30 days of the date of this order, plaintiff shall file an opposition, if any, to defendants' motion for summary judgment. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REX CHAPPELL,

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No. 2:10-cv-2676 KJM AC P

Plaintiff,
v.

ORDER

DUC, et al.,
Defendants.

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On September 16, 2013, defendants filed a motion for summary judgment, ECF No. 63,
pursuant to Federal Rule of Civil Procedure 56. Plaintiff has not opposed the motion.
Local Rule 230(l) provides in part: “Failure of the responding party to file written

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opposition or to file a statement of no opposition may be deemed a waiver of any opposition to

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the granting of the motion . . . .” By Order filed on January 20, 2012, ECF No. 27, plaintiff was

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advised of the requirements for filing an opposition to the motion and that failure to oppose such

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a motion may be deemed a waiver of opposition to the motion. See Rand v. Rowland, 154 F.3d

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952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry,

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849 F.2d 409 (9th Cir. 1988). In addition, defendants provided the concurrent Rand notice, ECF

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No. 63 at 2, required by Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), setting forth the

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requirements to oppose a motion for summary judgment.

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Local Rule 110 provides that failure to comply with the Local Rules “may be grounds for
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imposition of any and all sanctions authorized by statute or Rule or within the inherent power of

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the Court.” In the order filed January 12, 2012, plaintiff was advised that failure to comply with

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the Local Rules may result in a recommendation that the action be dismissed. The Ninth Circuit

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has recently held that a district court is prohibited from granting a summary judgment motion

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solely based on a failure to oppose the motion notwithstanding any local rule suggesting

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otherwise. Heinemann v. Satterberg, 731 F. 3d 914, 916 (9th Cir. 2013). Nevertheless, a “failure

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to respond to a fact asserted in the motion permits a court to ‘consider the fact undisputed for

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purposes of the motion.’” Id. at 917 (quoting Fed. R. Civ. P. 56(e)(2)).

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Good cause appearing, IT IS HEREBY ORDERED that, within thirty days of the date of

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this order, plaintiff shall file an opposition, if any, to defendants’ motion for summary judgment.

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Failure to file an opposition, properly addressing defendants’ assertions of fact, will result in the

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facts asserted by the motion to be considered by the court as undisputed for purposes of

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adjudicating the motion.

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DATED: March 10, 2014

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