Graves v. Clinton et al

Filing 73

ORDER signed by Magistrate Judge Kendall J. Newman on 9/27/2011 ORDERING that pursuant the court's # 67 order and the court's Local Rules, pltf's "Response to Summary Judgment" # 72 , shall be DISREGARDED and not considered in resolving dfts' pending motion to dismiss and for summary judgment. (Reader, L)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

PETER GRAVES,

11
12
13

Plaintiff,

No. 2:10-cv-3156 MCE KJN PS

v.
HILLARY RODHAM CLINTON
and JAMES STEINBERG,

14
Defendants.
15

ORDER
/

16

The court is in receipt of plaintiff’s “Response to Summary Judgment,” which

17

plaintiff filed on September 26, 2011.1 Defendants’ motions to dismiss and for summary

18

judgment are set to be heard on September 29, 2011. Plaintiff’s “response” constitutes plaintiff’s

19

second written opposition to defendants’ motions, or a sur-reply. In either case, plaintiff’s filing

20

violates this court’s order entered August 29, 2011, and the court’s Local Rules, which do not

21

permit the filing of multiple opposition briefs or sur-reply briefs. (See Order, Aug. 29, 2011, at

22

2-3 (providing that “plaintiff shall file only one written opposition to defendants’ motion, and

23

that opposition must be filed no later than September 15, 2011.”), Dkt. No. 67.)

24

Plaintiff has demonstrated a consistent inability to follow the court’s orders and

25
1

26

This action proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
1

1

Local Rules and the Federal Rules of Civil Procedure, and plaintiff’s recent filing is simply one

2

more example of plaintiff’s complete and blatant disregard for the court’s orders and the

3

applicable rules of procedure. Although the undersigned previously warned plaintiff that his

4

failure to comply with the court’s orders, the court’s Local Rules, or the Federal Rules of Civil

5

Procedure would result in a recommendation that his case be dismissed with prejudice pursuant

6

to Federal Rule of Civil Procedure 41(b),2 the undersigned will nonetheless consider defendants’

7

motions on the merits and hear those motions on September 29, 2011. However, pursuant to the

8

order entered August 29, 2011, plaintiff’s “Response to Summary Judgment” filed on

9

September 26, 2011, is summarily disregarded and will not be considered in resolving

10

defendants’ pending motions.3 (Order, Aug. 29, 2011, at 3 (“Plaintiff’s failure to file a single,

11

timely written opposition will result in a recommendation that plaintiff’s case be dismissed with

12

prejudice, and shall also constitute plaintiff’s consent to the dismissal. Any documents filed by

13

plaintiff after September 15th that are addressed to defendants’ pending motions will be

14

summarily disregarded.” (emphasis omitted).)

15

////

16

////

17

////

18
2

19
20
21
22

(See Order, Aug. 29, 2011, at 6 (“If plaintiff files a written opposition, it must conform
to the court’s Local Rules, the Federal Rules of Civil Procedure, and the rules set forth in this
order. Plaintiff’s failure to file a written opposition, or his failure to file a written opposition
that conforms to the court’s Local Rules, the Federal Rules of Civil Procedure, and the rules set
forth in this order, will be deemed grounds for dismissal of this case and plaintiff’s consent to
the granting of the motions. As discussed in length above, plaintiff’s failure to properly oppose
defendants’ motions shall constitute grounds for the imposition of appropriate sanctions,
including a recommendation that plaintiff’s case be involuntarily dismissed with prejudice
pursuant to Federal Rule of Civil Procedure 41(b) and this court’s Local Rules.”)

23
3

24
25
26

On September 8, 2011, the district judge assigned to this case denied plaintiff’s motion
for reconsideration of the undersigned’s order entered August 29, 2011. (Order, Sept. 8, 2011,
at 3 (“All provisions of the Magistrate Judge’s Order (ECF No. 67) remain in effect, including
but not limited to the guidelines imposed for opposing (not later than September 15, 2011)
Defendants’ Motion to Dismiss and/or Motion for Summary Judgment (ECF No. 59) presently
set for hearing on September 29, 2011.”), Dkt. No. 70.)
2

1

Accordingly, IT IS HEREBY ORDERED that pursuant the court’s August 29,

2

2011 order and the court’s Local Rules, plaintiff’s “Response to Summary Judgment” filed on

3

September 26, 2011, shall be disregarded and not considered in resolving defendants’ pending

4

motion to dismiss and for summary judgment.

5
6

IT IS SO ORDERED.
DATED: September 27, 2011

7
8
9

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3