Benyamini v. Swett et al

Filing 25

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/16/14 ORDERING that the hearing on defendants motion to declare plaintiff a vexatious litigant is continued to May 21, 2014, at 10:00 a.m. in Courtroom No. 8. Plaintiff shall show cause, in writing, no later than April 30, 2014, why sanctions should not be imposed for failure to timely file an opposition or a statement of non-opposition to the pending motion. Plaintiff shall file an opposition to the motion, or a statement of non-opposition thereto, no later than April 30, 2014. Plaintiffs motion for a change of calendar (ECF No. 24 ) is denied.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT BENYAMINI,

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Plaintiff,

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No. 2:13-cv-735-KJM-EFB P

v.

ORDER

M. SWETT, et al.,

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Defendants.

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Plaintiff is a former state prisoner proceeding without counsel in an action brought under

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42 U.S.C. § 1983. Defendants move to declare plaintiff a vexatious litigant and have noticed the

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motion to be heard on April 23, 2014. ECF Nos. 22, 23. Defendants originally noticed the

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motion for April 9, 2014. ECF No. 20.
On March 21, 2014, plaintiff filed a motion for a “change of calendar.” ECF No. 24. In

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that filing, plaintiff states that he cannot attend a hearing on April 9, 2014 because of a scheduling

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conflict and that he cannot afford to travel to two places in one day. He further states that

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because he is on parole, he must receive a “pass” to travel to Sacramento for a hearing and

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requests that he be allowed to appear telephonically. Because defendants’ motion is now noticed

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to be heard on April 23, plaintiff’s request to appear telephonically at the April 9 hearing is

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denied as moot.

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In addition, plaintiff requests permission to file documents with the court electronically.

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ECF No. 24. This request is also denied. Local Rule 133(b)(2) provides that, “Any person

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appearing pro se may not utilize electronic filing except with the permission of the assigned

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Judge or Magistrate Judge. See E.D. Cal. L.R. 133(b)(3). All pro se parties shall file and serve

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paper documents as required by applicable Federal Rules of Civil or Criminal Procedure or by

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these Rules.” Plaintiff’s request does not provide any reasons for making an exception to the

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Local Rule. His request is denied.

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Moreover, court records reflect that plaintiff has filed neither an opposition nor a
statement of non-opposition to the motion. Local Rule 230(c) provides that opposition to the

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

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party, and filed with this court, no later than fourteen days preceding the noticed hearing date or,

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in this instance, by April 9, 2014. Local Rule 230(c) further provides that “[n]o party will be

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entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not

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been timely filed by that party.”

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Local Rule 110 provides that failure to comply with the Local Rules “may be grounds for

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imposition by the Court of any and all sanctions authorized by statute or Rule or within the

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inherent power of the Court.” See also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure

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to follow a district court’s local rules is a proper ground for dismissal.”).

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Accordingly, good cause appearing, IT IS HEREBY ORDERED that:

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1. The hearing on defendants’ motion to declare plaintiff a vexatious litigant is continued

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to May 21, 2014, at 10:00 a.m. in Courtroom No. 8.

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2. Plaintiff shall show cause, in writing, no later than April 30, 2014, why sanctions

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

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the pending motion.

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3. Plaintiff shall file an opposition to the motion, or a statement of non-opposition thereto,

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no later than April 30, 2014.

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4. Failure of plaintiff to file an opposition to the motion will be deemed a statement of

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non-opposition thereto, and may result in a recommendation that this action be dismissed for lack

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of prosecution and/or for failure to comply with court orders and this court’s Local Rules. See

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Fed. R. Civ. P. 41(b).

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5. Defendants may file a reply to plaintiff’s opposition, if any, on or before May 7,
2014.

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6. Plaintiff’s motion for a “change of calendar” (ECF No. 24) is denied.

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SO ORDERED.

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DATED: April 16, 2014.

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