Gonzales v. McDonald

Filing 20

ORDER signed by Magistrate Judge Kendall J. Newman on 1/08/13 ordering that within 30 days of the date of this order, plaintiff shall file an opposition, if any, to the motion to dismiss. Failure to file an opposition will be deemed as consent to have the: a) pending motion granted; b) action dismissed for lack of prosecution; and c) action dismissed based on plaintiff's failure to comply with these rules and a court order. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

MARK ANTHONY GONZALES,

11

Plaintiff,

12

vs.

13

No. 2:12-cv-1035 KJN P

M. McDONALD,

14
15
16
17
18

Defendant.

ORDER
/

On November 28, 2012, defendant filed a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b). Plaintiff has not opposed the motion.
Local Rule 230(l) provides in part: “Failure of the responding party to file written

19

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

20

the granting of the motion . . . .” On August 9, 2012, plaintiff was advised of the requirements

21

for filing an opposition to a motion and that failure to oppose such a motion may be deemed a

22

waiver of opposition to the motion. Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003).

23

Moreover, defendant provided a separate Wyatt notice concerning the requirements for opposing

24

a motion to dismiss contemporaneously with the filing of the instant motion. (Dkt. No. 19-1.)

25
26

Local Rule 110 provides that failure to comply with the Local Rules “may be
grounds for imposition of any and all sanctions authorized by statute or Rule or within the
1

1

inherent power of the Court.” In the order filed August 9, 2012, plaintiff was also advised

2

that failure to comply with the Local Rules may result in a recommendation that the action be

3

dismissed.

4

Finally, Rule 41(b) of the Federal Rules of Civil Procedure provides:

5

Involuntary Dismissal; Effect. If the plaintiff fails to prosecute
or to comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision
(b) and any dismissal not under this rule--except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule
19--operates as an adjudication on the merits.

6
7
8
9

Id.

10

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

11

date of this order, plaintiff shall file an opposition, if any, to the motion to dismiss. Failure to file

12

an opposition will be deemed as consent to have the: (a) pending motion granted; (b) action

13

dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s failure to comply

14

with these rules and a court order. Such failure shall result in a recommendation that this action

15

be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

16

DATED: January 8, 2013

17
18

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

19
20

gonz1035.46o

21
22
23
24
25
26
2