Shah v. Employment Development Department

Filing 14

ORDER signed by Magistrate Judge Edmund F. Brennan on 08/26/11 ORDERING that the 10 08/01/11 OSC is DISCHARGED; the hearing on the 9 Motion to Dismiss is CONTINUED to 10/19/11 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan; plf shall file an opposition or non-opposition by 10/15/11; dft may file a reply by 10/12/11. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FERNANDO SHAH,
Plaintiff,

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No. CIV S-11-0318 GEB EFB PS

vs.
EMPLOYMENT DEVELOPMENT
DEPARTMENT,

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Defendant.
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ORDER
/

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This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to

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Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendant

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moves to dismiss plaintiff’s complaint and noticed the motion to be heard on August 10, 2011.

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Dckt. No. 9.

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On August 1, 2011, because plaintiff had not filed either an opposition or a statement of

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non-opposition to the motion, the undersigned continued the hearing on the motion to September

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7, 2011; ordered plaintiff to show cause, in writing, no later than August 24, 2011, why sanctions

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

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opposition to the pending motion; and directed plaintiff to file an opposition to the motion, or a

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statement of non-opposition thereto, no later than August 24, 2011. Dckt. No. 10. The

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undersigned further stated that “[f]ailure of plaintiff to file an opposition will be deemed a
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statement of non-opposition to the pending motion, and may result in a recommendation that this

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action be dismissed for lack of prosecution and/or for failure to comply with court orders and

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this court’s Local Rules. See Fed. R. Civ. P. 41(b).” Id.

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On August 8, 2011, plaintiff filed a response to the order to show cause, requesting that

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sanctions not be imposed and requesting that the hearing on the motion to dismiss “continue[] as

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originally scheduled (September 7, 2011).” Dckt. No. 11. In light of plaintiff’s filing, the

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undersigned will decline to impose sanctions at this time.

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However, plaintiff still has not filed a substantive opposition or statement of non-

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opposition to the pending motion. Local Rule 230(c) provides that opposition to the granting of

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a motion, or a statement of non-opposition thereto, must be served upon the moving party, and

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filed with this court, no later than fourteen days preceding the noticed hearing date. Local Rule

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230(c) further provides that “[n]o party will be entitled to be heard in opposition to a motion at

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oral arguments if opposition to the motion has not been timely filed by that party.” See also E.D.

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Cal. L.R. 183 (governing persons appearing in pro se and providing that failure to comply with

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the Federal Rules of Civil Procedure and Local Rules may be ground for dismissal, judgment by

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default, or other appropriate sanction); L.R. 110 (providing that failure to comply with the Local

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Rules “may be grounds for imposition by the Court of any and all sanctions authorized by statute

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or Rule or within the inherent power of the Court.”). Therefore, the hearing on the motion will

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be continued, and plaintiff will once again be directed to file an opposition or a statement of non-

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opposition to the pending motion. If plaintiff elects to file an opposition, the opposition shall

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respond to the arguments made in the motion to dismiss.

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Accordingly, it is hereby ORDERED that:

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1. The August 1, 2011 order to show cause is discharged.

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2. The September 7, 2011 hearing on defendant’s motion to dismiss, Dckt. No. 9, is

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continued to October 19, 2011 at 10:00 a.m. in Courtroom No. 24.

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3. Plaintiff shall file an opposition to the motion, or a statement of non-opposition
thereto, no later than October 5, 2011.

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4. Failure of plaintiff to file an opposition will be deemed a statement of non-opposition

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to the pending motion, and may result in a recommendation that this action be dismissed for lack

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of prosecution. See Fed. R. Civ. P. 41(b).

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5. Defendant may file a reply to plaintiff’s opposition, if any, on or before October 12,
2011.
SO ORDERED.
DATED: August 26, 2011.

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