Hooker v. Kimura-Yip et al

Filing 40

ORDER signed by Judge Lawrence K. Karlton on 8/26/13 ORDERING that Petitioner's 39 motion to vacate is GRANTED, and the Order 35 and Judgment 36 of 2/14/2013 are hereby VACATED. Petitioner is granted 60 days from the date of this order to file objections to the Magistrate Judge's 28 Findings and Recommendations. (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD OLIVER HOOKER, 12 13 14 No. 11cv0899 LKK CKD P Plaintiff, v. ORDER T. KIMURA-YIP, et al., 15 Defendants. 16 17 Pending before the court is Petitioner’s motion to vacate this court’s order 18 adopting the Findings and Recommendations of the Magistrate Judge, and dismissing 19 the case with prejudice. 20 On December 18, 2012, the Magistrate Judge signed an order granting Petitioner 21 a sixty (60) day extension of time to file and serve objections to her Findings and 22 Recommendations. See ECF No. 39. However, before the time extension had expired, 23 this court adopted the Findings and Recommendations and dismissed the petition, in 24 part because Petitioner had failed to file his objections in time. This was plain error, 25 apparently resulting from the court’s failure to reckon properly the time available for 26 Petitioner to file his objections. Defendant’s motion to vacate will therefore be granted. 27 Accordingly, it is hereby ordered that: 28 1. Petitioner’s motion to vacate (ECF No. 39), is hereby GRANTED, and the 1 1 Order and Judgment of February 14, 2013 (ECF Nos. 35 and 36), are hereby 2 VACATED; 3 2. Petitioner is granted sixty (60) days from the date of this order to file his 4 objections to the Magistrate Judge’s September 14, 2012 Findings and 5 Recommendations (ECF No. 28). 6 IT IS SO ORDERED. 7 DATED: August 26, 2013. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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