Smith v. United States District Court for the Northern District

Filing 16

ORDER signed by Magistrate Judge Kendall J. Newman on 05/20/13 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 on plaintiff's failure to comply with these rules and a court order. (Plummer, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 STEVEN R. SMITH, 11 Petitioner, 12 13 No. 2:13-cv-0605 KJN P vs. MARION SPEARMAN, Warden, 14 Respondent. 15 ORDER / 16 Both parties consented to proceed before the undersigned for all purposes. See 28 17 U.S.C. § 636(c). On April 17, 2013, respondent filed a motion to dismiss the petition based on 18 petitioner’s alleged failure to exhaust state remedies. Petitioner has not opposed the motion. 19 Local Rule 230(l) provides in part: “Failure of the responding party to file written 20 opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 21 the granting of the motion . . . .” Id. On April 1, 2013, petitioner was informed that his 22 opposition or statement of non-opposition to a motion shall be filed within thirty days after 23 service of the motion. (ECF No. 8 at 2.) 24 //// 25 //// 26 //// 1 1 Local Rule 110 provides that failure to comply with the Local Rules “may be 2 grounds for imposition of any and all sanctions authorized by statute or Rule or within the 3 inherent power of the Court.” Id. 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: May 20, 2013 17 18 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 19 20 smit0605.46o 21 22 23 24 25 26 2

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